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2018 (4) TMI 1580

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....China and the destination of delivery was Tugalkabad, Delhi. After its import and delivery at Delhi the same was being transported to Meerut in the State of Uttar Pradesh and on 23.09.2008 while it was in transit the same was seized, as, it was found that Form-38 being carried with the goods was not complete in various respects and certain columns specially Column No. 6 relating to the Bill/ Invoice number was unfilled. After the seizure, penalty proceedings took place and accordingly a penalty of Rs. 23,25,000/- was imposed upon the revisionist vide order dated 06.06.2009 passed by the Deputy Commissioner, Commercial Tax, Lucknow. Against which it filed an appeal which was rejected and the penalty order was affirmed by the Additional Commissioner Appeals vide his order dated 13.05.2010. Being aggrieved a second appeal was filed before the Commissioner Tax Tribunal, which was also rejected thereby affirming the penalty proceedings and first appellate order vide judgment dated 20.09.2013 which is under challenge in this revision. The contention of learned counsel for the revisionist was that no tax was leviable and payable on the turn over of sale or purchase where such sale or p....

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....Form-38, which was being carried, were unfilled, therefore, the Tribunal and the Authorities below after considering the facts of the case and material on record opined that such Form-38 could be misused and the intent to evade tax was established consequently the penalty has been imposed, which is not at all erroneous. Point no. 6 of the Circular dated 03.02.2009 was applicable only in the case of import from outside into the Territory of India and not thereafter when the goods were being further imported into another States within the country and this Circular had been clarified by a subsequent Circular dated 03.06.2009. It was also contended that these goods were not disclosed in the returns filed by the revisionist. Having heard learned counsel for the parties and perused the records, the Court finds that the competent authority while imposing the penalty has considered the facts of the case and the material available. In its order dated 06.06.2009 it noticed that Form-38 which was mandatorily required to be carried under Section 50 of the Act, 2008, was deficient, as, column no. 6 relating to Bill, Challan, Cash Memo/Invoice number and its date were unfilled. Consequently, ....

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....rom Sales Tax, obviously it is so at the point of entry into the country. It is not as if after delivery of the goods at the destination within the Territory of India if the said goods are further transported to any other part of the country, they would be exempted from tax on sale etc. In the present case the destination of delivery of the telecommunication equipments which was imported from China was Tuglakabad, Delhi, as such, once the goods were delivered to the revisionist at Delhi it is only up to this stage that no tax was leviable under the Act, 2008 and the Act, 1956. Once, it was being transported further to other parts of the country and was being imported in the State of U.P., then the relevant taxation provisions would apply. The fact that the revisionist was not transporting the goods for sale is not material, what is material is as to whether the goods which were being imported into State of U.P. from Delhi were goods other than goods named and described in Schedule I (See Section 50 of the Act, 2008). Different forms are prescribed for being carried during the course of import into the State by road for business purpose or otherwise than in the course of business....

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....ds. (4) Where the officer making the search or inspection under this section finds any person transporting or attempting or abetting to transport any goods to which this section applies without being covered by the proper and genuine documents referred to in the preceding subsections and if, for reason to be recorded, he is satisfied after giving such person an opportunity of being heard that such goods were being so transported in an attempt to evade assessment or payment of tax due or likely to be due under this Act, he may order detention of such goods. (5) The provisions of sub-sections (3), (7), (8), (9) and (10) of section 48 shall mutatis mutandis apply to goods detained under sub-section (4), as they apply to goods seized under that section." In the present case, Form- 38, which is meant from being carried in the case of import by a dealer in connection with his business was being carried and it is not in dispute that goods which were being transported were other than those mentioned in Schedule- I referred in Section 50. It is not in dispute that Section 50 of the Act, 2008 was violated as the requisite document which was being carried was not as per R....

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.... memo or invoice number should be filled, was blank unfilled. 26. Let us examine the fact of the present case. In the present case, admittedly column No. 6 of the declaration form was found unfilled, namely, bill, invoice and challan numbers were not mentioned. According to me, mentioning of challan, bill and invoice numbers in the declaration form is very material. By filling column No. 6 and mentioning invoice, bill or challan numbers the declaration form can be correlated with the goods covered by invoices or challan. Photostat copy of Form 38 has been produced before the Court during the course of hearing which is on record. Perusal of the said form reveals that all the columns have been filled except column No. 6. When the applicant was filling all the columns, there cannot be any plausible reason why he has left filling column No. 6. This act appears to be deliberate. Nonfilling of column No. 6 i.e. non mentioning of challan number or invoice number may lead to an inference that in case of non-checking of goods, the said declaration form may be used for any other consignment of a similar quantity, quality, weight and value. In the declaration form, some of the column....

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....Court is of the view that the revision does not involve any question of law so as to warrant interference under Section 58 of the Act, 2008. The revision is accordingly dismissed. Interim order granted earlier stands discharged. ============= Document 1 รขโ‚ฌล“5รขโ‚ฌโ€œ ร ยคยนร ยคยฎร ยคยพร ยคยฐร ยฅโ€ก ร ยคยฆร ยฅยร ยคยตร ยคยพร ยคยฐร ยคยพ ร ยคยตร ยคยฟร ยคยฆร ยฅยร ยคยตร ยคยพร ยคยจ ร ยคโ€ฆร ยคยงร ยคยฟร ยคยตร ยคโ€ขร ยฅยร ยคยคร ยคยพ ร ยคยฆร ยฅยร ยคยตร ยคยพร ยคยฐร ยคยพ ร ยคยชร ยฅยร ยคยฐร ยคยธร ยฅยร ยคยคร ยฅยร ยคยค ร ยคยคร ยคยฐร ยฅยร ยคโ€ขร ยฅโ€น, ร ยคโ€ฆร ยคยชร ยฅโ‚ฌร ยคยฒ ร ยคยฎร ยฅโ€กร ยคยฎร ยฅโ€นร ยคโ€š ร ยคยฎร ยฅโ€กร ยคโ€š ร ยคยจร ยคยฟร ยคยนร ยคยฟร ยคยค ร ยคยธร ยคยฎร ยคยธร ยฅยร ยคยค ร ยคยฌร ยคยฟร ยคยจร ยฅยร ยคยฆร ยฅย ร ยคยฐร ยคยพร ยคล“ร ยฅยร ยคยฏ ร ยคยชร ยฅยร ยคยฐร ยคยคร ยคยฟร ยคยจร ยคยฟร ยคยงร ยคยฟ ร ยคยฆร ยฅยร ยคยตร ยคยพร ยคยฐร ยคยพ ร ยคยชร ยฅยร ยคยฐร ยคยธร ยฅยร ยคยคร ยฅยร ยคยค ร ยคยคร ยคยฐร ยฅยร ยคโ€ขร ยฅโ€นร ยคโ€š ร ยคโ€ร ยคยฐ ร ยคโ€ฆร ยคยญร ยคยฟร ยคยฒร ยฅโ€กร ยคโ€“ ร ยคยชร ยคยฐ ร ยคโ€ฐร ยคยชร ยคยฒร ยคยฌร ยฅยร ยคยง ร ยคยธร ยคยฎร ยคโ€”ร ยฅยร ยคยฐ ร ยคยคร ยคยฅร ยฅยร ยคยฏร ยฅโ€นร ยคโ€š ร ยคยชร ยคยฐ ร ยคยตร ยคยฟร ยคลกร ยคยพร ยคยฐ ร ยคโ€ขร ยคยฟร ยคยฏร ....

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....ยคยฎ-6 ร ยคยฎร ยฅโ€กร ยคโ€š ร ยคโ€ฆร ยคโ€šร ยคโ€ขร ยคยฟร ยคยค ร ยคยฌร ยคยฟร ยคยฒ / ร ยคโ€ขร ยฅห†ร ยคยถร ยคยฎร ยฅโ€กร ยคยฎร ยฅโ€นร ยคโ€š / ร ยคลกร ยคยพร ยคยฒร ยคยพร ยคยจ / ร ยคลธร ยฅห†ร ยคโ€ขร ยฅยร ยคยธ ร ยคโ€กร ยคยจร ยฅยร ยคยตร ยคยพร ยคยฏร ยคยธ ร ยคโ€ ร ยคยฆร ยคยฟ ร ยคโ€ขร ยคยฟร ยคยธร ยฅโ‚ฌ ร ยคยร ยคโ€ข ร ยคยชร ยฅยร ยคยฐร ยคยชร ยคยคร ยฅยร ยคยฐ ร ยคโ€ขร ยฅโ‚ฌ ร ยคยธร ยคโ€šร ยคโ€“ร ยฅยร ยคยฏร ยคยพ ร ยคยคร ยคยฅร ยคยพ ร ยคยคร ยคยฟร ยคยฅร ยคยฟ ร ยคโ€ขร ยคยพ ร ยคโ€ฆร ยคโ€šร ยคโ€ขร ยคยจ ร ยคยจร ยคยนร ยฅโ‚ฌร ยคโ€š ร ยคโ€ขร ยคยฟร ยคยฏร ยคยพ ร ยคโ€”ร ยคยฏร ยคยพ ร ยคยนร ยฅห†, ร ยคยคร ยฅโ€น ร ยคยฎร ยคยพร ยคยฒ ร ยคโ€ขร ยฅโ€น ร ยคโ€ฆร ยคยญร ยคยฟร ยคโ€”ร ยฅยร ยคยฐร ยคยนร ยฅโ‚ฌร ยคยค ร ยคโ€ขร ยคยฐ ร ยคยตร ยคยฟร ยคยงร ยคยฟร ยคโ€ข ร ยคโ€ขร ยคยพร ยคยฐร ยฅยร ยคยฏร ยคยตร ยคยพร ยคยนร ยฅโ‚ฌ ร ยคโ€ขร ยฅโ‚ฌ ร ยคล“ร ยคยพร ยคยฏร ยฅยค ร ยคโ€ฆร ยคยคร ยคฦ’ ร ยคโ€กร ยคยธ ร ยคยฌร ยคยฟร ยคยจร ยฅยร ยคยฆร ยฅย ร ยคยชร ยคยฐ ร ยคยคร ยคยฐร ยฅยร ยคโ€ข ร ยคโ€ฐร ยคลกร ยคยฟร ยคยค ร ยคยจร ยคยนร ยฅโ‚ฌร ยคโ€š ร ยคยนร ยฅห†ร ยฅยค ร ยคยตร ยคยฟร ยคลกร ยคยพร ยคยฐร ยคยพร ยคยงร ยฅโ‚ฌร ยคยจ ร ยคยฎร ยคยพร ยคยฎร ยคยฒร ยฅโ€ก ร ยคยธร ยคลกร ยคยฒร ยคยฆร ยคยฒ ร ยคโ€กร ยคโ€ขร ยคยพร ยคห† ร ยคยฆร ยฅยร ยคยตร ยคยพร ยคยฐร ....

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....ร ยคยพ ร ยคยฐร ยคยนร ยฅโ‚ฌ ร ยคยนร ยฅห† ร ยคยร ยคยตร ยคโ€š ร ยคโ€ขร ยคยฐร ยคยพร ยคยชร ยคยตร ยคโ€šร ยคลกร ยคยจ ร ยคโ€ขร ยคยพ ร ยคโ€ฐร ยคยฆร ยฅยร ยคยฆร ยฅโ€กร ยคยถร ยฅยร ยคยฏ ร ยคยฐร ยคยนร ยคยจร ยคยพ ร ยคยชร ยฅยร ยคยฐร ยคยฎร ยคยพร ยคยฃร ยคยฟร ยคยค ร ยคยนร ยฅโ€นร ยคยคร ยคยพ ร ยคยนร ยฅห†ร ยฅยค M/s Rama Pulses Vs. State of U.P. Others 2009 NTN Vol. 41 Page 189 ร ยคโ€ขร ยฅโ€ก ร ยคยฎร ยคยพร ยคยฎร ยคยฒร ยฅโ€ก ร ยคยฎร ยฅโ€กร ยคโ€š ร ยคยฆร ยคยฟร ยคยฏร ยฅโ€ก ร ยคโ€”ร ยคยฏร ยฅโ€ก ร ยคยจร ยคยฟร ยคยฐร ยฅยร ยคยฃร ยคยฏ ร ยคยฎร ยฅโ€กร ยคโ€š ร ยคยฎร ยคยพร ยคยจร ยคยจร ยฅโ‚ฌร ยคยฏ ร ยคโ€ฐร ยคลกร ยฅยร ยคลก ร ยคยจร ยฅยร ยคยฏร ยคยพร ยคยฏร ยคยพร ยคยฒร ยคยฏ ร ยคยจร ยฅโ€ก ร ยคยจร ยคยฟร ยคยฎร ยฅยร ยคยจ ร ยคโ€ฆร ยคยญร ยคยฟร ยคยฎร ยคยค ร ยคยฆร ยคยฟร ยคยฏร ยคยพ ร ยคยนร ยฅห†- "Before imposing penalty, the authority has to give notice under Section 54 (1) and to record a finding either on the basis of material before it or produced by the dealer or any other person or the department and which may include incomplete Form-38, (which may be a ground for seizure of the goods), that there was an intention to evade the payment of tax." ร ยคโ€กร ยคยธร ยฅโ‚ฌ ร ยคยชร ยฅยร ยคยฐร ยคโ€ข....

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....ร ยฅโ€น ร ยคยญร ยคยฐร ยฅโ€ก ร ยคยฌร ยคยฟร ยคยจร ยคยพ ร ยคยฎร ยคยพร ยคยฒ ร ยคโ€ขร ยคยพ ร ยคโ€ ร ยคยฏร ยคยพร ยคยค ร ยคโ€ขร ยคยฟร ยคยฏร ยคยพ ร ยคล“ร ยคยพร ยคยจร ยคยพ ร ยคยจร ยคยฟร ยคยถร ยฅยร ยคลกร ยคยฟร ยคยค ร ยคยฐร ยฅโ€šร ยคยช ร ยคยธร ยฅโ€ก ร ยคโ€ฐร ยคยคร ยฅยร ยคยคร ยคยฐ ร ยคยชร ยฅยร ยคยฐร ยคยฆร ยฅโ€กร ยคยถ ร ยคยฎร ยฅโ€šร ยคยฒร ยฅยร ยคยฏ ร ยคยธร ยคยตร ยคยฐร ยฅยร ยคยงร ยคยฟร ยคยค ร ยคโ€ขร ยคยฐ ร ยคโ€ฆร ยคยงร ยคยฟร ยคยจร ยคยฟร ยคยฏร ยคยฎ ร ยคโ€ขร ยฅโ‚ฌ ร ยคยงร ยคยพร ยคยฐร ยคยพ- 50 ร ยคโ€ขร ยคยพ ร ยคโ€ฐร ยคยฒร ยฅยร ยคยฒร ยคโ€šร ยคหœร ยคยจ ร ยคยนร ยฅห†ร ยคโ€š ร ยคโ€กร ยคยธ ร ยคยธร ยคโ€šร ยคยฆร ยคยฐร ยฅยร ยคยญ ร ยคยฎร ยฅโ€กร ยคโ€š ร ยคยฎร ยคยนร ยคยคร ยฅยร ยคยตร ยคยชร ยฅโ€šร ยคยฐร ยฅยร ยคยฃ ร ยคยฌร ยคยฟร ยคยจร ยฅยร ยคยฆร ยฅย ร ยคยฏร ยคยน ร ยคยนร ยฅห† ร ยคโ€ขร ยคยฟ ร ยคยฎร ยคยพร ยคยจร ยคยจร ยฅโ‚ฌร ยคยฏ ร ยคโ€ฐร ยคลกร ยฅยร ยคลก ร ยคยจร ยฅยร ยคยฏร ยคยพร ยคยฏร ยคยพร ยคยฒร ยคยฏ ร ยคยฆร ยฅยร ยคยตร ยคยพร ยคยฐร ยคยพ M/s Rama Pulses Vs. State of U.P. Others 2009 NTN_Vol.41 Page-189 ร ยคยฎร ยฅโ€กร ยคโ€š ร ยคยชร ยฅยร ยคยฐร ยคยคร ยคยฟร ยคยชร ยคยพร ยคยฆร ยคยฟร ยคยค ร ยคยธร ยคยฟร ยคยฆร ยฅยร ยคยงร ยคยพร ยคโ€šร ยคยค ร ยคยธร ยฅโ€ก ร ยคยธร ยฅยร ยคยชร ยคยทร ยฅยร ยคลธ ร ยคยนร ....