TaxTMI 
TaxTMI 
2024 (9) TMI 1
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....e, the learned Tribunal was justified in upholding the penalty imposed under Section 51 (7)(b) for the goods being imported to Chandigarh from Himachal Pradesh on the ground of undervaluation merely on the basis of provisions for levy of excise duty on MRP basis under Central Excise Act? (ii) Whether on the facts and in the circumstances of the case, the learned Tribunal was justified in upholding the penalty levied on road side checking under Section 51 (7)(b) even though the determination of actual valuation of goods is within the domain of the assessing authority?" 2. For adjudication of the aforesaid questions, it would be apposite to quote Section 51 (7)(a)(b) of the Punjab VAT Act 2005 (hereinafter to be referred as "the Act of 2005"), which reads as under:- "51. Establishment of information collection centres or check posts and inspection of goods in transit:-(7) (a). The officer detaining the goods under sub-section (6), shall record the statement, if any, given by the consignor or consignee of the goods or his representative or the driver or other person Incharge of the goods vehicle and shall require him to prove the genuineness of the transaction bef....
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....securing the amount of tax, in the prescribed form and manner, for an amount not exceeding one thousand rupees or twenty per centum of the value of the goods, whichever is greater: Provided that where any goods are detained a report shall be made immediately and in any case within twenty-four hours of the detention of the goods by the officer detaining the goods to the Excise and Taxation Officer of the district seeking the latter's permission for the detention of the goods for a period exceeding twenty-four hours, as and when so required, and if no intimation to the contrary is received from the latter the former may assume that his proposal has been accepted. (7) The officer detaining the goods shall record the statement, if any, given by the owner of the goods or his representative or the driver or other person incharge of the goods vehicle or vessel and shall require him to produce proper and genuine documents as referred to in sub-section (2) or sub-section (4), as the case may be, before him in his office on a specified date on which date the officer shall submit the proceedings along with the connected records to such officer as may be authorised in tha....
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....e noticed that the goods which are to be detained are also specified in Section 14-B (6) as goods meant for trade and not covered by proper and genuine documents. 5. xxx xxx xxx 6. While Section 14-B (8), as it stood originally, provided for the payment of the tax recoverable and a penalty, present Section 14-B (7) does not provide for recovery of the tax but provides for the imposition of penalty which is calculated not on the basis of the tax payable but on the basis of the value of the goods. The present provision is clearly outside the rule laid down in Commissioner of Commercial Taxes and others v. Ramkishan Shrikishan Jhaver and others, (supra). It cannot for a moment be pretended that there can be no attempt to evade the tax due under the Act before the liability to pay the tax has arisen. A scheme or device to evade the tax may start operating long before the actual liability to pay the tax arises. As soon as the scheme or device, is set in motion there is an attempt to evade the tax due under the Act and it will not be necessary to wait till the liability to pay the tax actually arises. If an attempt to evade tax is discovered earlier, the liability to be....
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.... at evasion nor can be extended to areas where there was no attempt at evasion. (3) In an appropriate case, the writ court may examine the exercise of power and interfere if exercise of power is found to be arbitrary, mala fide and without nexus with attempt at evasion on the face of it. (4) If there are disputed questions and there is reasonable nexus of exercise of power with attempt at evasion, writ petition against imposition of penalty at the check-post cannot be entertained. (5) Where relevant documents are duly produced but a bona fide plea against taxability is raised and there is neither mis-declaration nor concealment, exercise of power of imposing penalty at the check-post on the ground of attempt at evasion may not be called for. In the present case, contention raised by the assessee that the "cast iron castings" carried by it were not "cast iron" liable to tax at the first stage, could not be held to be requiring no adjudication or frivolous or mala fide. It is not relevant as to what is the interpretation finally taken on this subject and we do not express any conclusive opinion at this stage but having not concealed any information....
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....ubmitted that the sales tax can be imposed only when the sale is made in future and the price is the basis for measuring tax and not on the basis of presumptions. 12. Learned counsel for the appellants further submitted that the actual determination of value of goods is in the domain of the assessing officer and the checking officer could not have done the valuation of the goods on the road side. There was no concealment by the appellants nor there is any mens rea on the part of the appellant to evade the tax. The price mentioned in the invoices was the price as fixed by the manufacturer and was the cost/ purchase price for the appellant at his level. Therefore, there could not be any occasion for evasion of tax. No sale has been made at Chandigarh. The goods were purchased against C-form from the consigner at Baddi, who had duly charged the GST @ 2%. Since the imposition of excise tax exempted in the State of Himachal Pradesh, presumption cannot be drawn on the said basis. 13. Learned counsel for the appellants has also relied on Division Bench judgment of this Court in CWP No. 1576 of 2002 - Gujarat Ambuja Cements Limited and others vs the State of Haryana decided on 30.08.....
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....e packet has no rational connection with the taxable sale effected by the wholesalers and which becomes the subject-matter of charge as a first point tax. In such event, there exists no nexus between the measure of levy and subject of levy. 44. In the context of the meaning assigned to the expression "sale of goods" or price or consideration element of such "sale of goods" as taxable event, the conclusion that can fairly be reached is that for the taxing event of sale, if the price is to be the basis for measuring tax, it must relate to actual transaction of sale that becomes the subject of tax and not to a different transaction that may take place in future at a price." 18. We find that the invoices have been issued by the manufacturer, who is placed in Himachal Pradesh where the excise duty is exempted. In the circumstances, the valuation of goods i.e. purchase price for any person would be comparatively much lower than that of other places where excise duty is payable. It is also not a case of the State authorities that the invoices were different for the appellant in comparison to other distributors. Once there is no finding in this regard, a presumption cannot be d....