TaxTMI 
TaxTMI 
2016 (11) TMI 1195
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....VAT 47, insofar as date, month and value are concerned, was not duly punched and, therefore, it was prima facie noticed by the officer that it was with the intention of evasion of tax. It was also noticed that the vehicle contained 202 bundles of paper-roll whereas the documents produced were for 185 bundles of paper. Accordingly show cause notice u/s 76(2)(b) of the Act was issued. On the show cause notice, on behalf of the respondent assessee, in the light of judgment of apex court in the case of State of Rajasthan & Another v. D.P. Metals (2001) 124 STC 611, VAT declaration form 47 duly filled was produced and it was claimed by the assessee that the assessee complied with the provisions of the Act and accordingly no penalty is required to be levied. However, the officer was not satisfied and rejected the contention by holding that the declaration form ought to have been completely filled in all respect and also to be punched simultaneously, accordingly levied penalty u/s 76(6) of the Act. 3. The matter was assailed before the Dy. Com. (Appeals) who took into consideration the material placed on record and held that the judgment in the case of D.P. Metals (supra) is not applicab....
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....at subsequent filing of the declaration form is sufficient compliance as in the first instance on a show cause a new declaration form was given duly filled in, complete in all respect, and in the light of the judgment in the case of D.P. Metals (supra) penalty was rightly deleted by the Tax Board. He further contended that when the new declaration form duly filled in has been placed on record, then the judgment of Guljag Industries (supra) is not applicable and distinguishable. He also contended that punching of a document is a technical error and ought not to be made a basis for imposition of penalty. He also relied upon the judgments rendered in the case of ACTO v. M/s S. Vrindavan Oil Products, 2006 (Part 3) Tax Up-Date (15) page 109; CTO v. M/s. Globe Transport Corporation, S.B. STR No.165/2011 decided on 26.2.2013; ACTO v. M/s. REBI Casting (Pvt.) Ltd. S.B. STR No.400/2008 decided on 1.8.2013; ACTO V. M/s. Suresh Kumar & Company S.B. STR No.105/2010 decided on 30.5.2013; ACTO, Jaipur v. M/s. Dueful Laboratories, Jaipur, S.B. STR No.542/2011 decided on 29.8.2016. 6. I have considered the arguments advanced by the learned counsel for the parties and perused the impugned order. ....
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....h goods, for inspection, at any place within his jurisdiction and the provisions of sub- section (2) shall mutatis mutandis apply. (5) Where any goods in movement, other than exempted goods, are without documents, or are not supported by documents as referred to in sub- section (2), or documents produced appears to be false or forged, the Incharge of the check-post or barrier or the officer authorised under sub- section (4) may- (a) direct the owner or a person duly authorised by such owner or the driver or the person Incharge of the vehicle or carrier or of the goods not to part with the goods in any manner including by re-transporting or re-booking, till a verification is done or an enquiry is made, which shall not take more than seven days; (b) seize the goods for reasons to be recorded in writing and shall give a receipt of the goods to the person from whose possession or control they are seized; (c) release the goods seized under clause (b) to the owner of the goods or to a person duly authorised by such owner, during the course of the proceeding, if adequate security of the amount equal to the estimated value of the goods is furnished. (6) The Incharge of the check....
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....(S.M.S.) or through Interactive Voice Response System (I.V.R.S.), to the department on the telephone numbers allotted for this purpose through a pre intimated cellular phone before the goods enter into the territory of the State. On intimation of the aforesaid information the dealer shall receive an Identification number through S.M.S. on same cellular phone. He shall also furnish or cause to be furnished the declaration Form VAT-47 completed in all respect to his assessing authority by the next working day. The owner or a person duly authorised by such owner or the driver or the person incharge of a vehicle or carrier or of goods in movement shall intimate the said Identification number to the assessing authority or the person authorised by the Commissioner at the time of checking of goods in movement, which shall be deemed to be prescribed form with goods in movement. (2) The owner or a person duly authorised by such owner or the driver or person Incharge of a vehicle or carrier or of goods, shall carry with him the documents specified in clause (b) of sub- section (2) of section 76 including declaration form prescribed in sub-rule (1), in respect of the goods in movement and ....
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....ady been noticed earlier. It may be on a show cause notice having been given, the assessee did produce another declaration form which is claimed to be filled in and complete in all respect. During the course of hearing, learned counsel for the assessee produced both the declaration forms and contended that the subsequent Form takes care of fulfilling the Declaration VAT 47. 11. The matters relating to blank/incomplete declaration form has been the bone of contention in between the Revenue and the assessee in particular and earlier when the declaration forms were ST-18A, ST- 18AA, ST-18C, the matters travelled before the apex court and the apex court in the case of D.P. Metals (supra) held that carrying declaration form complete in all respect is mandatory, however, in case the declaration form was not found with the vehicle, the apex court held that if a show cause notice is given and a declaration form is produced at the first instance, then such a Form can be considered to be sufficient compliance. It was held ad infra :- "32. Such submission of false or forged documents or declaration at the check-post or even thereafter can safely be presumed to have been motivated by desire....
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....were found to be not filled in/blank, the apex court in the case of Guljag Industries (supra) held that such declaration forms cannot be considered, and it would be appropriate to quote the relevant paras which read ad infra:- "25. There is dichotomy between contravention of Section 78(2) of the said Act which invites strict civil liability on the assessee and the evasion of tax. When a statement of import/export is not filed before the A.O. it results in evasion of tax, however, when the goods in movement are carried without the declaration Form No. 18A/18C then strict liability comes in, in the form of Section 78(5) of the said Act. Breach of Section 78(2) imposes strict liability under Section 78(5) because as stated above goods in movement cannot be carried without Form No. 18A/18C. 26. We are not concerned with non-filing of statements before the A.O. We are concerned with the goods in movement being carried without supporting declaration forms. The object behind enactment of Section 78(5) which gives no discretion to the competent authority in the matter of quantum of penalty fixed at 30 per cent of the estimated value is to provide to the State a remedy for the loss of r....
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....He knows the descriptions of the goods which he is supposed to buy. There is no reason for leaving that column blank. therefore, there are no special circumstances in any case for waiver of penalty for contravention of Section 78(2). The assessees were fully aware that the goods in movement had to be supported by Form ST 18A/18C. therefore, they made the goods travelled with the forms. However, the said forms are left blank in all material respects. therefore, A.O. was right in drawing inference of mens rea against the assessees. 29. It has been repeatedly argued before us that apart from the declaration forms the assessees possessed documentary evidence like invoice, books of accounts 14 etc. to support the movement of goods and, therefore, it was open to the assessees to show to the competent authority that there was no intention to evade the tax. We find no merit in this argument. Firstly, we are concerned with contravention of Section 78(2) which requires the goods in movement to travel with the declaration in Form 18A/18C duly filled in. It is Section 78(2)(a) which has been contravened in the present case by the assessees by carrying the goods with blank forms though signed....
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....cularly taking into consideration the additional mandate of law of punching the declaration form, though the learned counsel contended that it is technical error, but in my view it cannot be said to be mere technicality particularly when it is an additional feature introduced by the Government to avoid misuse or reuse of declaration forms and to avoid manipulations by the assessees. To say that it is a technical error, in my view, is not proper. Once the apex court says that declaration form should be complete in all respect, then punching having been introduced as one of the additional feature later, is required to be taken into consideration. What is to be punched is date, month of use and value, which neither the earlier Form nor the new Form was punched and, therefore, in my view the subsequent declaration form can also be said to be incomplete or not duly filled in and is not sufficient compliance of the mandate of law. 16. It is surprising that though the Dy. Com. (Appeals) took it as one of the grounds to reject the contention of the assessee in addition to other grounds, however, though the Tax Board did refer to the argument of the Revenue about punching of the declaratio....