TaxTMI 
TaxTMI 
2014 (9) TMI 464
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.... the petitioner were dismissed. The brief facts of the case are that the petitioner is a transporter engaged in the business of transportation of goods. That certain consignment contending various consumer goods were loaded at Bombay in two trucks bearing Registration Nos. M.P. 09-KB-0817 and M.P. 09-KB-2195. The goods loaded in the truck were consigned by various parties for delivery to M/s. Hindustan Lever Ltd. at different places. Part of the goods were to be delivered at Indore and Jabalpur in the State of Madhya Pradesh and part of the goods to be delivered at places outside the State of Madhya Pradesh, viz., Varanasi and Shuklaganj in Uttar Pradesh. The goods consigned to the places outside Madhya Pradesh were only to pass through the State of Madhya Pradesh and were not meant for the sale in Madhya Pradesh. The truck No. 817 reached Sendhwa check-post on May 27, 2003 and truck No. 2195 reached on May 28, 2003. They were stopped and detained at check-post barrier. It is the case of the petitioner that the requisite declaration in form No. 75 were not available with the trucks. Though the case of the petitioner is that the trucks were having invoice, builty, challan, etc., ....
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.... consignments in the shape of other documents like invoices, bilties, challan, etc. Moreover, the accompanying documents contained all the information that was required to be filled in the requisite prescribed forms. The petitioner furnished all the necessary declarations and requested the check-post authority to drop the penalty proceedings after taking the said declaration on record. Respondent No. 1 again imposed the penalty under section 45A(12) of the Act of 1994, mainly on the ground that declaration in question were not available with the goods and the filing of the declarations subsequently cannot absolve the petitioner from the liability of penalty. The check-post authority imposed the penalty at Rs. 3,91,000 in respect of truck No. M.P. 09-KB-0817 vide his order dated September 1, 2003 passed in Case No. 48/ 2003-04 (remand) and in respect of truck No. M.P. 09-KB-2195, the check-post authority has imposed the penalty at Rs. 6,17,000 in Case No. 49/2003-04 (remand). The petitioner being aggrieved by the said order filed a revision petition under section 62 of the Act of 1994, before the Additional Commissioner of Commercial Tax, Indore. The contention of the petition....
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....d 85 are altogether different, because form No. 75 is described for importing goods within the State, whereas, form No. 85 describes about out to out transaction. In case of form No. 85, there is no need to provide the information about the registration number to consignee whereas in form No. 75, the registration number of consignee is necessary, so the exigibility of tax can be ascertained from the consignee of Madhya Pradesh. It is further submitted that form No. 75 is issued by the Department, whereas form No. 85 is easily available in the market. For proper accounting of the transaction the Department issues form No. 75. While in case of form No. 85, since it is for the out to out, the State of M.P. has no concern with the ascertainment of tax liability. It is further submitted that the petitioner has submitted some form No. 85 in case of goods of which the consignee is of Jabalpur, which is admittedly within the State of M.P. The said conduct of the petitioner does suggest that in the garb of form No. 85, the petitioner is facilitating evasion of tax. With the aforesaid, the learned Deputy Government advocate prayed for dismissal of the writ petitions. The petitioner filed ....
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....bsp; Note: The transporter was carrying and had furnished form No. 75 for MTR No. 13781 at S. No. 1 above at the check-post at the time of entry of the truck and has been so mentioned in the order under section 45A by the check-post officer dated June 6, 2003. It is submitted that the petitioner has filed all declarations and wherever there are more consignment for one consignee only a single declaration has been filed, which meets the requirement of section 45A(5), it is also stated that if all the declarations, which were filed before the check-post authority in respect of both the truck numbers are verified from the documents which the driver of both the trucks were having at the time of checking, it would be clear that all the necessary declarations have been filed. It is submitted by the learned counsel for the petitioner that if the particulars of the both the charts are compared with the particular of deficiency as pointed out in the original order, annexure P/6, it would be clear that all the necessary declarations for all consignments have been filed. These facts have not been disputed by the respondents. The learned Deputy Government Advocate has submitted,....
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....b-section (7) may presume, until the contrary is proved. Shri P.M. Choudhary, learned counsel for the petitioner taking us through the provisions of section 45A, sub-sections (7), (10) and (12) and submitted that the purpose of imposing the penalty is to check the evasion of tax and to punish a person who evade the tax. According to him in the present case, there is no intention for avoiding tax. He invited our attention to the delivery chart MTRS and other documents. He pointed out that in all these documents the particulars of the material and other details are clearly mentioned. It was a case where because of inadvertance or oversight, form Nos. 75 and 85 did not accompany the consignment. Form Nos. 75 and 85 were also produced and submitted, but the authorities have imposed the penalty which is unsustainable. Accordingly, the learned counsel submitted that as there is no intention on the part of the petitioner transporter to evade the tax and there is no malice a bona fide mistake technically in nature is not contained and tax and penalty imposed without taking note of the totality of the facts and circumstances of the case. Placing reliance on judgments rendered by the apex....
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....ed on an assumption that the declaration under form Nos. 75 and 85 was not produced and the intention to facilitate evasion of tax was presumed due to non-production of this statutory form in the check-post. The presumption was drawn in the matter of evasion of tax without taking note of the circumstances that were existing in the present case. Neither the assessing authority in the check-post nor the revisional authority have considered this aspect of the matter before holding that there was intention to evade tax. The invoices and other documents produced by the transporter in the check-post do not indicate that any attempt was made to evade tax. It is not the case of the assessing authority or revisional authority that the documents produced at the time of checking showed any difference in the matter. Record indicates that all the material particulars and information which were required were available in the documents produced at the time of checking of the vehicle and no mala fides are proved or established and the nexus to the act of non-production of documents and the intention to evade tax is not proved. Under these circumstances, the question is can penalty be imposed merel....
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....e the necessary ingredients which should be available for imposing penalty. Merely, because some technical or venial breach of a statutory provision is established that by itself is not a reason for imposing penalty. In the present case the authorities have proceeded to impose penalty without taking note of all these factors. There is nothing on record to indicate that the act of the company or concerned transporter in the matter of non-production of form No. 75 was a deliberate and intentional act for the purpose of evasion of tax. On the contrary, the records indicate that all the necessary information which was required under the law was supplied during the time of verification at the check-post. Under these circumstances, it was incumbent upon the authorities concerned to examine the entire matter and find out if there was any intention to evade payment of tax. Before imposing penalty on the petitioner a finding should have been recorded as to whether there was any intention on the part of the petitioner to evade tax as no such intention is either established or proved. On the contrary, as a matter of course, mechanically penalty is imposed merely on the ground that the statuto....
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.... penalty of 30 per cent is the maximum and lesser penalty can be levied. The Legislature thought it fit to specify a fixed rate of penalty and not give any discretion in lowering the rate of penalty. The penalty so fixed is meant to be a deterrent and we do not see anything wrong in this. The quantum of penalty under the circumstances enumerated in section 78(5) cannot, in our opinion, be regarded as illegal. The Legislature in its wisdom has thought it appropriate to fix it at 30 per cent of the value of goods and it had the competence to so fix. As held by this court in Rai Ramakrishna v. State of Bihar [1964] 1 SCR 897 at 910: 'The objects to be taxed so long as they happen to be within the legislative competence of the Legislature can be taxed by the Legislature according to the exigencies of its needs, because there can be no doubt that the State is entitled to raise revenue by taxation. The quantum of tax levied by the taxing statute, the conditions subject to which it is levied, the manner in which it is sought to be recovered, are all matters within the competence of the Legislature, and in dealing with the contention raised by a citizen that the taxing statute contrave....