TaxTMI 
TaxTMI 
2014 (3) TMI 548
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.... Court: i. Whether any penalty under Section 54(1)(14) of the U.P. Value Added Tax Act, 2008 (hereinafter referred to as "Act, 2008") can be levied on the basis of Column no. 6 of Form 38 being left blank, when goods were accompanied with Tax invoice, G.R. bearing Bill number and date, and the entries required to be made in the Form 38 could have been ascertained from the accompanying documents itself? ii. Whether penalty under Section 54(1)(14) of Act, 2008 can be imposed in "absence of intention to evade tax", in the teeth of law laid down by a Division Bench of this Court in Rama Pulses Vs. State of U.P. & others, VSTI 2009 B-1034? iii. Whether penalty under Section 54(1)(14) of Act, 2008 can be imposed merely for non filling of Column no. 6 of Form 38? iv. Whether leaving Column 6 of Form 38 can be said to be a contravention of Section 50 or Section 51 of the Act, 2008?" 4. It is contended that goods were accompanied by tax invoice, G.R./Bilty of transporter and Form 38. Though, it is true that Column 6 in Form 38 was not filled in and left blank, but that was not fault on the part of assessee, for the reason that Form 38 was filled in, either by sender of goods or transpo....
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....shall obtain the prescribed form of declaration, in such manner as may be prescribed from the assessing authority having jurisdiction over the area, where his principal place of business is situated or, in case there is no such place, where he ordinarily resides or shall download from official web site of the department in such manner as may be prescribed: Provided that where the importer intends to bring, import or otherwise receive such goods otherwise than in connection with business, he may, at his option, in the like manner obtain the prescribed form of certificate. (2) (a) where such goods are imported, brought or otherwise received into the state by registered dealer, he shall carry such declarations or documents as may be prescribed. (b) where the goods are imported, brought or otherwise received into the state by a person otherwise than in connection with business, he may likewise carry such certificates and documents as may be prescribed." "51. Import of goods into the State by rail, air, post, river or rope way - (1)(a) Where any taxable goods are consigned by rail, air or post from a place outside the State for delivery to a dealer inside the State, the concerned a....
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.... 45 or an officer referred to in sub-section (1) of section 48 or section 50 while making inspection or search finds any taxable goods, in respect of which declaration before the officer authorised under sub-section (1) has not been made or goods being carried as personal luggage are not accompanied by the form of declaration referred to in clause (a) of sub-section (1) and where after giving reasonable opportunity of being heard to the person in charge of the goods at the time of inspection of goods or the owner of the goods, as the case may be, such officer (officer making inspection or search) is satisfied that such taxable goods are being imported in an attempt to evade payment of tax under this Act, he may, after recording such reasons, detain the goods. (5) Provisions of sub-sections (3), (7), (8), (9) and (10) of section 48 shall mutatis mutandis apply to such detention of goods as they apply goods seized under that section. (6) Notwithstanding anything contained in sections 50 and this section, the State Government may, in public interest and for sufficient reasons, relax the requirement of furnishing of declaration or certificate referred to in aforesaid sections to such....
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....ns of the form to the selling dealer or consignor of the other State after filling in all the required details. It reads as under: "Rule 56. Issue and submission of declaration forms and matters incidental threto- (1) A registered dealer desirous of importing or receiving into the State from any place outside the State, goods notified under or referred to in sub-section (1) of section 50 in excess of the quantity, measure or value specified thereunder, shall send to the selling dealer or consignor of the other State two copies of the declaration obtained by him under sub-rule (4) or downloaded from official website of the department. .. (6) The registered dealer shall send the original and duplicate portions of the form to the selling dealer or consignor of the other State after filling in all the required particulars and signing it." (emphasis added) 13. Sections 50 and 51 of Act, 2008, read with Rules, as noted above, as the case may be, require that importer/transporter not only should possess a declaration form, as prescribed, but also other documents as prescribed. The statute further requires that declaration form must be duly filled in and signed by concerned parties. Wh....
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.... firstly, there must be contravention of provisions under Section 50 or 51 and Secondly; such contravention must be with a view to evade payment of tax of sale of such goods or goods manufactured, processed or packed by using such goods etc. 17. Mere contravention of Section 50 or 51 but without any intention to evade tax, therefore, would not attract penalty. This is what has been held by this Court in various authorities relied on by the learned Senior Counsel appearing for assessee. A Division Bench of this Court in M/s Rama Pulses Vs. State of U.P. and others, 2009 VSTI B-1034=2009 NTN (41) 189 has held that under Act, 2008, before imposing penalty, authority concerned has to record a finding either on the basis of material before it or produced by the dealer or any other person or the Department, which may include incomplete form 38 that there was an intention to evade payment of tax. This is what has been followed in subsequent decisions also. 18. The importance of Column 6 of From 38 has been examined in Multitex Filtration Engineering Ltd. Vs. C.C.T., 2009 NTN (Vol.40) 389, where this Court has observed, "According to me, mentioning of challan, bill and Invoice numbers in....
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....nstances too, which may not have been scrutinized by the Flying Squad Officer. In such a circumstance, the trader's act of leaving column - 6 of Form - 38 blank, proves his intention of tax-evasion." (English Translation by the Court) 20. This Court enquired from learned counsel for the assessee that the goods, which have been imported, did not contain such identification so as to distinguish the goods of one lot from others. If one Form 38 is successfully used in respect to certain goods imported without checking, the same Form 38 cannot be used in respect to another lot of goods imported by the assessee since column 6 was blank and whether such repeated use of Form 38 is possible or not, I did not get any satisfactory categorical reply at all. 21. Though Sri Agarwal contended that invoice and bilty of transporter contain various details, therefore, it would not be probable to use same Form 38 repeatedly but on deeper scrutiny, could not totally exclude possibility of such repeated use. He, however, submit that if in future certain goods are imported by using Form 38 again, that would not justify penalty on the goods seized on the earlier occasion. 22. I find no substance ....
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....ts and circumstances, the Court found that except declaration form, all the documents were in order; and there was no concealment of sale of goods, the blank form was available with truck driver but due to interregnum change in the circumstances, which were beyond his control, the form could not be duly filled in for which he was not at all responsible. There was neither any mala fide intention nor any concealment on the part of assessee. In view of these very findings of fact recorded by Tribunal, it find imposition of penalty unjust and accordingly set aside the same. This order was confirmed by this Court by dismissing revision preferred by Revenue. I do not find as to how this judgment would help assessee in this case for the reason that, firstly, this judgment is founded on its own peculiar facts and secondly, when Tribunal found, as a matter of fact, that there was no intention to evade tax, penalty could not have been imposed. It was thus rightly set aside. 25. In Commissioner of Commercial Tax Lko. Vs. Jagrani Marketing Pvt. Ltd. Lko., 2013 NTN (Vol. 51) - 12, the flying- squad when intercepted a truck loaded with 194 pieces of carton found that amongst the documents avail....
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....omission /keeping column 6 of Form- 38 blank was nothing but it was in the nature of clerical mistake for which penalty as such would not be attracted unless a further finding is recorded that there is an intention to evade payment of tax. In Commissioner, Commercial Tax Vs. Manglam Cement Ltd., 2013 NTN (Vol. 51)-18, penalty was imposed by Assessing Authority, since column 6 of Form 38 lacked date of bill/invoice. The first appellate authority itself deleted penalty holding that mere fact that column was blank would not justify imposition of penalty unless there is an intention to evade tax on the part of the importer. 27. In Commissioner, Commercial Tax, Vs. Shipra Engineering Works Pvt. Ltd., 2013 NTN (Vol. 51)- 171, the Tribunal itself deleted penalty and this Court declined to interfere therewith. 28. Similarly in Commissioner, Commercial Tax, Vs. Sudarshan Spare Parts and Service Centre, 2013 NTN (Vol. 51)-156, the Tribunal while deleting penalty, recorded a finding that there was no intention on the part of assessee to evade tax and hence this Court did not interfere. 29. In Meerut Food Industries Vs. Commissioner, Commercial Tax, 2013 NTN (Vol. 52) - 161, the Court clear....