TaxTMI 
TaxTMI 
2020 (1) TMI 752
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....ntention to evade tax and for reuse of the said Form. A show cause notice was issued to the respondents and a penalty of an amount of Rs. 1,38,000/-was imposed in exercise of power under section 54(1)(14) of the VAT Act. 4. Against the penalty order 31.08.2010 the respondents had preferred a First appeal before the Additional Commissioner Grade-II (Appeals) Moradabad who after considering the entire conspectus of the case dismissed the appeal preferred by the respondents, subsequent to which the second appeal was preferred before the Tribunal. 5. I have heard the learned counsel for the parties and perused the record. 6. It is admitted fact that Column 6 of Form 38 was not filled up in the main copy, but in the duplicate copy the same was filled up. The other documents which were carried out by the driver also included a certificate issued by the Forest department which been filled up after physical inspection of the entire goods which were being transported. It was submitted by the respondents that it is only due to oversight and human error that column 6 of Form 38 was remain unfilled. 7. Considering the entire facts of the case the Tribunal has came to the conclusion....
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....in particulars of transporters / carrier, namely, service provider number, truck number, name and address of driver and driving license number are to be filled up. Column no. 1 to 6 may be filled up only with the help of bill / cash memo / chalan / tax invoice. Recurring instances comes to light that column no. 6 is left blank due to which penalty under Section 54(1)(14) of the Act, 2008 is imposed by the assessing authority on the ground that non filling of this column facilitates tax evaders to evade tax by re-using the same form 38 for import of unaccounted goods. It is the case of the department that when entire informations in form XXXVIII are filled up with the help of the relevant bill / cash memo / chalan / tax invoice then there is no reason not to fill up column no. 6 i.e. bill / cash memo / chalan / tax invoice number and date. According to the department this clearly indicates import of goods to evade payment of tax which attracts penalty under Section 54(1)(14) of the Act, 2008 unless it is shown that even if details in column no. 6 have not been filled up yet there was no intention to evade payment of tax. 11. In the instant case it is admitted fact that the res....
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....This power can be exercised only if the goods detained are not accompanied by the requisite documents or that the documents accompanying them are false and if there is material before the detaining authority to indicate that the goods are being imported in an attempt to evade assessment or payment of tax due or likely to be due under the Act. The instant case, therefore, in our opinion, clearly falls outside the ratio of the case of Check Post Officer v. K. P. Abdulla & Bros. [1971] 27 STC 1 (SC) as decided by the Supreme Court. 29. The first question that arises for consideration is whether the expression "attempt to evade assessment or payment of tax due or likely to be due" can be said to be vague and whether the power conferred upon the Check Post Officer in this regard can be said to be arbitrary. In our opinion, the expression "attempt, to evade assessment or payment of tax due or likely to be due" cannot be said to be an expression conveying vague ideas. It is, in our opinion, an expression having a definite connotation. An attempt to evade assessment or payment of tax due or likely to be due can take place in so many different ways that it is not possible for any l....
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....2) is a mandatory provision. If the declaration Form 18A/18C does not support the goods in movement because it is left blank then in that event Section 78(5) provides for imposition of monetary penalty for non-compliance. Default or failure to comply with Section 78(2) is the failure/default of statutory civil obligation and proceedings under Section 78(5) is neither criminal nor quasi-criminal in nature. The penalty is for statutory offence. Therefore, there is no question of proving of intention or of mens rea as the same is excluded from the category of essential element for imposing penalty. ........" 17. Perusal sub Section 6 of Section 28A itself indicates that penalty can be imposed only after giving opportunity of being heard that the goods were being so transported in an attempt to evade payment of tax due or likely to be due under the Act and therefore mens rea becomes essential ingredient, and therefore the facts in the case of M/s M/s Guljag Industries (supra) are distinguishable in respect to the provisions of the Act, 2008 applicable in the State of Uttar Pradesh. 18. Non-filling up of column no. 6 i.e. not mentioning of bill / cash memo / chalan / invoice numbe....