TaxTMI 
TaxTMI 
TaxTMI 
2019 (1) TMI 958
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....ereinafter referred to as the Act) for the assessment year 2008-2009. 3. Though the present revision was admitted without reference to any question of law at the time of hearing the matter has been pressed on the following question:- "Whether the burden to establish mens rea being on the revenue, penalty under Section 10(A) of the Act could have been imposed and sustained on the import of generator set and non-woven fabric by the assessee, in absence of the registration certificate being proven?" 4. The facts in brief are, undisputedly the assessee is engaged in the business of trading in two wheelers automobile manufactured by Hero Motors Ltd. The assessee did not disclose any other business at any stage. In such circumstances, the ass....
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....ed on the assessee mens rea was necessary to be established. The burden to establish mens rea always rested on the revenue. Inasmuch as the registration certificate of the assessee was not produced by the revenue, the basic fact as to the items for which the assessee was granted registration was never established by the revenue. Consequently, it could never be said that the assessee had deliberately and knowingly imported generator set and non-woven fabric by making false declaration of Form-C. It has also been submitted that in any case the entire quantity of non-woven fabric was utilized by the assessee in making seat cover for the vehicle sold by it and the generator set was also utilized only to run a welding machine to assemble the mot....
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....any two wheelers, the mere non-production of the registration certificate that was claimed to have been lost by the assessee, did not give rise to any benefit of doubt to be given to the assessee, in this regard. 9. Any dealer who is granted registration to conduct retail trade in two wheelers cannot claim use either of a generator set or of non-woven fabric. In fact, it has been submitted that it was not even the assessee's case that he had ever been granted a registration to deal in generator sets and on non-woven fabric. Once it was not the case of the assessee that it had ever be granted a registration to deal in generator set and non-woven fabric, there could not have arisen a situation where the assessee could have entertained a ....
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....t's registration certificate. 13. That being the admitted fact of the present assessee, a commonsense stand point had to be taken by the authorities to examine whether any person engaged in such trade could have utilized Form-C to import generator set and non-woven fabric. Insofar as the generator set is concerned, clearly all the authorities have concurrently found the same had no use in connection with the sale of motor vehicle made by the assessee. The explanation submitted by the assessee with respect to welding carried by him on brand new vehicles received from the manufacturer, was completely disbelieved. 14. Even as to the utilization of non-woven fabric, inasmuch as it was not the case of the assessee that the same were access....
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.... had also made an application for addition of those items in the registration certificate. The activity for which that assessee had been registered included activity of packing goods and material. Adhesive stickers and labels had also been utilized for the purpose of manufacture of packing goods and material. The Court observed that there is a distinction between false representation and wrong representation. 17. In the instant case, there is no connection between the items for which the assessee was registered and the items that were imported for it's utilization Form-C. Also the items thus imported had no connection with the activity for which the petitioner claims itself to have been registered being trading in two wheelers. 18. Th....