2010 (11) TMI 865

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....nd exporting cotton knitted fabrics. By the certificate of registration dated August 17, 1993, the class of goods mentioned therein are to be taxable at the specified rates. The particulars of the goods mentioned therein are extracted hereunder: "(b) For use in manufacture of processing of goods for sale: Cotton yarn, stitching yarn, needles all knitting stitching sewing machined and spares, hydraulic press, power loom cloth, electric iron boxes, textile manufacturing machineries and accessories, dyeing, calendering, packing machines. (c) For use in mining: Nil (d) For use in the general or distribution of electricity or any other form of power. Electric motor, oil engine, generator and alternator card board wooden cases, hoo....

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....unsel for the petitioner that in the absence of any mens rea attributable on the part of the petitioner, the proceedings initiated against the petitioner, cannot be sustained. In support of his contention that mens rea is a pre-requisite for imposing the penalty under section 10(a) of the Act, the learned senior counsel for the petitioner has relied upon the judgment of the Full Bench of this court in State of Tamil Nadu v. Nu-tread Tyres [2006] 148 STC 256 (Mad) [FB]. Per contra, Mr. R. Mahadevan, learned Additional Government Pleader, submitted that the writ petitions, as filed, are pre-mature. The learned Additional Government Pleader submitted that the proceedings have been initiated by the respondent only on the ground that the purc....

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....g the penalty, it is incumbent on the part of the respondent to give a positive finding that there is mens rea on the part of the assessee concerned. However, it cannot be said that even at the time of initiating the proceedings, the respondent will have to specify about the said aspect. Therefore, establishment of mens rea, being a question of fact, this court cannot go into the same, except by directing the respondent to apply the ratio laid down by the Full Bench of this court in State of Tamil Nadu v. Nu-tread Tyres [2006] 148 STC 256 (Mad) [FB], while exercising its power under section 10(a) of the Act. In so far as the other contentions raised by the learned counsel for the petitioner are concerned, the same also cannot be decid....