TaxTMI 
TaxTMI 
TaxTMI 
2024 (9) TMI 763
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....t India Transport Agency, 20B Abdul Hameed Street, Kolkata, by Bilti No.-6169578 (in two copies), bill no.1376/ date 17.08.2013 of M/s Mysoor Polymers and rubber product Ltd., 20B K.R.S road, Meta Street Pot Mysool, total value of Rs.35,10,000-00 was carried on. The driver of the vehicle was having old series form-16. On account of that, the trip sheet could not be prepared. For,-16 old K series was declared obsolete on 20/02/2013. So on the ground of above fact the mobile squad officer Amarpur issued show cause notice to assessee, in compliance of it the assessee filed its reply. The above imported material was given to the M/s Mysoor polymers and rubber product for job work, which was being return by above firm M/s Mysoor Polymer without doing any job work on account of the coming into end the agreement. The above goods is neither purchase nor sale, only being return without any job work on old form by mistake. There is no intention of evasion of tax in it. The driver of the vehicle could not produce the trip-sheet and Form 16 used by the transporter, was old form. 3. Thereafter, a notice was issued under Section 48 (8) of the Value Added Tax Act, and ex parte penalty order was ....
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....the Tribunal set-aside the order passed by the Appellate Authority, and amount of penalty of Rs. 10.00 lakh has been imposed by modifying the order passed by the Tax Assessment Officer, dated 13.01.2014. 9. The Tribunal proceeded to examine the facts of the case. The case setup by the revisionist-assessee M/s Birla Tyres was that they used to sent the raw material to Mysore for manufacturing of rubber tube on job work basis. The material which was sent to Mysore, no job work was done on that material, and it was being brought back without use. It was the case of the assessee before the Tribunal that the goods in question, neither purchased, nor was a case of sale. The goods were sent back on the old import declaration form (Form DCI) from the firm doing job work in Mysore, in which, no intention of tax evasion was vested. The provisions of Section 48 (8), in this backdrop are not attracted in the present case. 10. Before imposing penalty under Section 48 (8) of the Act, the Tax Assessment Officer has to be satisfied that the goods were imported in contravention of Section 48, is an attempt to evade assessment or payment of tax due or likely to be due under the Act. In this backdr....
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....tion 48A had not been prepared. 14. Learned counsel for the revisionist has referred to the judgment of the Hon'ble Supreme Court in the case of State of Rajasthan vs. D.P. Metals, 124 STC 611 (SC), on the proposition that before imposing penalty under the Rajasthan Sales Tax Act, the Hon'ble Supreme Court held that an opportunity of hearing should be given. Further, if the false and forged documents are produced, then it would should mens rea that there was an attempt to hide the truth. The Hon'ble Supreme Court held that if there is a provision of imposition of penalty of 30%, which is the maximum, lower penalty can also be levied. 15. Learned counsel has, thereafter, referred to the judgment of the Allahabad High Court in the case of M/s Balaji Timbers and paints vs. Commissioner, Commercial Tax, U.P., 2010 NTN (Vol. 43) -53 (Alld.). This judgment applies to the facts of the present case, where also a vehicle also checked, and an Import Declaration Form (Form 38) was not found along with the goods, which was, however, produced later on with the explanation that the vehicle transporting goods had broken down and in the absence of the driver, the vehicle had been checked. Subseq....
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....rip Sheet, the penalty is imposed, then it is justified as per the tax law. The Division Bench had set-aside the judgment dated 13.07.2016, passed by the Commercial Trade Tax Tribunal in Second Appeal No. 47 of 2016, and the judgment dated 10.09.2015, passed by the Joint Commissioner (Appeal), Commercial Tax in First Appeal No. 835 of 2015. 19. Learned State Counsel has argued that the present case has to be examined in the light of the provisions of the Uttarakhand Value Added Tax Act, 2005, and Section 48 of the Act. The provisions of Section 48 (2) of the Act relates to the goods which are to be consigned by road, and under Section 48 (2)(a) and (b) of the Act, the importer of the goods from outside the State has to furnish to the consignor the declaration in the prescribed form in duplicate duly filled in and signed by him. 20. Section 48 (2)(a) and (b) are as follows:- "(a) The importer shall furnish to the consignor the declaration in the prescribed form in duplicate duly filled in and signed by him, and the owner or a person duly authorized by such owner or the driver or person-in-charge of a vehicle or of goods in movement, as the case may be, shall carry with him the c....
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....nt of the Division Bench dated 09.04.2021, passed in CTR No.07 of 2017, where it has been observed that in Section 48, there is no provision for examining the mens rea of the transporter of goods for imposing penalty, is not correct. Section 48 (8) of the Act reads as under:- "(8) If such assessing officer, after taking into consideration the explanation, if any of the owner or a person duly authorized by such owner or the driver or person-incharge of a vehicle or of goods in movement as the case may be and after giving an opportunity of being heard is satisfied that the goods were imported or abetted to import in contravention of the provisions of this section in an attempt to evade assessment or payment of tax due or likely to be due under this Act, it shall pass an order imposing penalty not exceeding forty percent of the value of such goods involved or three times the tax leviable on such goods involved or three times the tax leviable on such goods under any of provisions of this Act, whichever is higher. The order of such penalty shall be properly served." 24. The very fact that when the goods are seized as per the provisions of Section 43 of the VAT Act, the provisions of....
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....form, which was made basis to impose penalty. Once, after show-cause notice, the valid declaration form (Form XVI) has been produced with respect to the same evidence of sending the goods for doing of job work in Mysore, and getting them back without job work, for all intents and purposes, it was not the case of evasion of tax on import of goods. Hence, in this backdrop, the finding given by the Tribunal that there was an attempt to evade the tax, is not correct. The ratio of the judgments M/s Balaji Timbers and paints vs. Commissioner, Commercial Tax, U.P., Castrol India Ltd. & another vs. Commissioner, Commercial Tax, and Narendra Singh, C/o Gati KWE Pvt. Ltd. vs. Commissioner, Commercial Tax, referred to by learned counsel for the revisionist apply to the facts of the present case, where it has been consistently held that when the vehicle was checked and the import declaration form was not found along with the goods, and was produced later with the explanation form, the seizure of goods and the demand of security was not justified. 25. Castrol India Ltd. & another vs. Commissioner, Commercial Tax, 2012 NTN (Vol. 49)-202, was a case where under the U.P. VAT Act, 2008, the goods....