TaxTMI 
TaxTMI 
2012 (7) TMI 873
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....y a common judgment. 2. This tax appeal has been filed challenging the Order dated 25.06.2009 passed by Gujarat Value Added Tax Tribunal at Ahmedabad in Second Appeal No.24 of 2009, as well as the Order dated 31.08.2009 passed by the same Tribunal in Rectification Application No.49 of 2009 and Rectification Application No.103 of 2009 for assessment period 2002-03. 3. The Appeal was admitted on 25.02.2011 on the following substantial question of law: "Whether, on the facts and in the circumstances of the case, the levy of penalty u/s 45[2][c] & 45 [6] of Gujarat Sales Tax Act, 1969 can be imposed for the period prior to the decision of the Apex Court in case of Yasha Overseas reported in 2008[8] SCC 681 and when entire amount of tax....
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....ecause under the liberal import policy no licence is required to import a very large number of goods and very few items, placed under the negative list, require a licence for import. We are, therefore, unable to accept the submission that DEPB is materially different from REP licence and its transfer by way of sale would not be exigible to sales tax. 59. We are afraid, we find the submission unacceptable. We are unable to see DEPB either as a debt or as a beneficial interest in movable property not in possession of the claimant. To us it is plain that DEPB like REP licence has its own intrinsic value and the purchaser, on payment of consideration, buys something for its value. The DEPB credit is thus clearly `goods' within the meanin....
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....as V/s. Commissioner of Sales Tax and Others (supra) these goods were non-taxable but after the Hon'ble the Apex Court clarified the liability, they have become taxable. Therefore, there was no intention of the assessee to avoid payment of tax deliberately. 9. The Hon'ble the Apex Court in Sree Krishna Electricals V/s. State of Tamil Nadu and Another reported in (2009) 23 VST 249 (SC) has held in para 7 as under : "So far as the question of penalty is concerned the items which were not included in the turnover were found incorporated in the appellant's account books. Where certain items which are not included in the turnover are disclosed in the dealer's own account books and the assessing authorities includes these it....
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....airs of the Company in failing to register the Company as a dealer acted in the honest and 757 genuine belief that the Company was not a dealer. Granting that they erred, no case for imposing penalty was made out." 11. Even our Court in the case of Hemchandbhai & Co. V/s. The State of Gujarat reported in (1980) 50 STC 274 has held as under : "The position of law in regard to the penalty proceedings is no longer in doubt. In Hindustan Steel Ltd. v. State of Orissa [1970] 25 STC 211 (SC) ; [1972] 83 ITR 26 (SC) it was held that an order imposing penalty for failure to carry out a statutory obligation is the result of a quasi-criminal proceeding, and that penalty will not ordinarily be imposed unless the party obliged either acted delibe....