JUDGMENT Rajes Kumar, J.
1. This revision is directed against the order of the Tribunal, dated August 28, 1992 relating to the assessment year 1988-89.
2. The brief facts of the case are that the applicant was engaged in the business of providing cranes on hire, having its office at 16, Babrala, Bombay. As per the agreement with M/s. Tata Chemicals Ltd., for providing one crane on hire, the applicant had dispatched one crane bearing registration No. HR-29-1716 against builty No. 1036, dated February 13, 1990. For the import of the said crane M/s. Tata Chemical Ltd., had given one form 31 No. FW 89-0211689. At the check-post, driver of the vehicle submitted the consignment note, builty, insurance cover note and form 31. The check-post officer seized the vehicle on the ground that under the contract for hire, the applicant was owner of the vehicle, and therefore, form 31 should be of applicant and not of M/s. Tata Chemical Ltd. In pursuance of the seizure order a penalty proceeding under Section 15-A(1)(o) was initiated. Reply to show cause notice was not accepted and a sum of Rs. 1,58,400 was levied towards penalty under Section 15-A(1)(o). The applicant filed appeal before the Assistant Commissioner which was allowed and penalty order was quashed. The Commissioner of Sales Tax filed appeal before the Tribunal which was allowed and the order of first appellate authority was set aside and penalty order was restored. Being aggrieved by the order of the Tribunal, the present revision has been filed.
3. I have heard Sri Bharatji Agarwal, Senior Advocate appearing on behalf of the applicant and Sri U.K. Pandey, learned Standing Counsel.
4. The contention of learned Counsel for the applicant is that the issue involved is squarely covered by the division Bench decision of this Court in case of Aster Technologies Private Ltd. New Delhi v. State of U.P. reported in 1990 12 STR 56 and learned single Judge judgment in case of Godfrey Philips India Ltd. Ghaziabad v. Commissioner of Sales Tax U.P. reported in 1992 UPTC 902 and by the latest judgment in case of Western India Enterprises Ltd. Delhi v. Commissioner of Sales Tax U.P. Lucknow, reported in 2003 23 NTN 564, and in case of Parry and Co. Ltd. New Delhi v. Commissioner of Sales Tax reported in 2004 138 STC 437; 2003 UPTC 742. It is submitted that before the Check-post Officer all the necessary documents, namely, consignment note, builty, insurance cover note were submitted and form 31 issued by M/s. Tata Chemical Ltd., was also submitted. It is further submitted that in pursuance of the agreement, crane was to be provided on hire to Tata Chemical Ltd., and, therefore, for the import of such vehicle Tata Chemicals had rightly given form 31, and in any view of the matter, no case of any attempt to evade the tax is made out by the assessing authority or Tribunal which is necessary for levying the penalty under Section 15-A(1)(o). Learned Standing Counsel relied on the judgment of the Tribunal.
5. I have perused the order of the Tribunal and heard the authorities below. There is no dispute that the movement of crane was in pursuance of contract with M/s. Tata Chemical Ltd., for providing the crane on hire. Crane was to be used by Tata Chemical Ltd., and therefore, it cannot be said that for the import of the said crane, use of form 31 of M/s. Tata Chemical Ltd., was not in accordance to law. The ownership of crane might be with the applicant but M/s. Tata Chemical Ltd., was the importer of such crane for their use, taken on hire. In any view of the matter, at the check-post all the documents relating to the crane, namely, consignment note, builty, insurance cover note, etc., were submitted along with form 31 issued by Tata Chemical Ltd., therefore, the goods were traceable to the parties. The purpose of form 31 is to bring to the notice of the authorities about the import of the goods so that same may be considered at the time of assessment. Form 31 never determines the nature of transaction.
6. In the case of Aster Technologies Private Ltd. New Delhi v. State of U.P. 1990 12 STR 56 the goods were dispatched by M/s. Aster Technologies Pvt. Ltd. and was being imported against form 31 issued by M/s. Mela Hotels Limited. The reasons of the Assistant Commissioner (Check-post), Ghaziabad, for rejecting the representation of the applicant was that form 31 was in the name of M/s. Mela Hotels Ltd., while it should be Aster Technologies Pvt. Ltd., and accordingly goods were seized. On the above facts this Court held as follows:
Section 28-A of the U.P. Sales Tax Act does not require that form 31 should be in the name of the owner of the goods. The provision is wide enough to cover even those cases where the goods are otherwise received into the State by any person. The person receiving may not be the owner of the goods. The impugned order of seizure as well as the order passed by the Assistant Commissioner under Section 13A(6) are both hence manifestly unsustainable in law.
7. In the case of Godfrey Philips India Ltd., Ghaziabad [1992] UPTC 902, the court held as follows:
This revision needs to be disposed of at the admission stage itself. Security has been demanded only on the ground that the form No. 31 was in the name of the applicant whereas it should have been in the name of the leasing company which had placed the order for supply of the machinery. Since all the documents accompanying the goods were in the name of the applicant, form No. 31 was also issued by it and, therefore, there is no illegality in the same because the purpose of form No. 31 is to bring the transaction to the notice of the department so that it may not remain unaccounted. It is now for the department on the basis of form No. 31 so issued to tax the party which is liable for it. Therefore, it becomes immaterial whether the form was issued by the applicant, who was consignee. According to the Revenue, form No. 31 should have been issued by the leasing company which had placed the order. It hardly makes any difference because the transaction has come to the notice of the department which is fully accounted for and it is the duty of the assessing authority to tax the person liable for the same.
8. In the case of Parry and Company Ltd. [2004] 138 STC 437 (All); 2003 UPTC 742, under the similar circumstances this Court has held as follows:
...The check-post officer has to see whether the goods were covered by the requisite documents or not. Admittedly at the check-post form 31 and form 35 were submitted along with other documents, namely, bill, invoice, challan, gate pass, etc. By the documents the goods were traceable to the parties and trade tax authority can call them at any stage in any proceeding. In case of Godfrey Philips India Ltd. Ghaziabad v. Commissioner of Sales Tax reported in [1992] UPTC 902, the applicant has taken certain machinery on lease from M/s. 20th Century Finance Corporation Limited, Bombay, and had placed the order on M/s. Mandi Deep Engineering and Packaging Industries Pvt. Ltd., Bhopal, for supply of the said machinery directly to the applicant. When the goods were being carried over from Bhopal to Ghaziabad, same were intercepted at the check-post. The goods were accompanied with goods receipt, invoice, form 31, form 35 and challan, etc., which were all in the name of the applicant. The goods were seized and the security was demanded on the ground that form 31 was in the name of the applicant, whereas, it should have been in the name of leasing company which had placed the order for supply of machinery. This Court held that, 'all the documents accompanying the goods were in the name of the applicant, form No. 31 was also issued by it and, therefore, there is no illegality in the same because the purpose of form No. 31 is to bring the transaction to the notice of the department so that it may not remain unaccounted. It is now for the department on the basis of form No. 31 so issued to tax the party which is liable for it. Therefore, it becomes immaterial whether the form was issued by the applicant, who as the consignee. According to the Revenue, form No. 31 should have been issued by the leasing company which had placed the order. It hardly makes a difference because transaction has come to the notice of department which is fully accounted for and it is the duty of the assessing authority to tax the person liable for the same'. This Court has held that the purpose of importing goods against declaration form is to bring the transaction to the notice of department, so that imported goods may not escape the assessment.
9. In the case of Western India Enterprises Ltd. [2003] 23 NTN 564, this Court held that, the fact that form 31 was not in the name of applicant firm but in the name of its employer will not make any difference and unless there is an intention to evade tax, no penalty can be imposed.
10. Therefore, even if the crane was being imported against form 31 of hirer, M/s. Tata Chemical Ltd., there was nothing wrong and was not against the provision of Section 28-A. Thus seizure order as well as penalty order are bad in law. Further, no case of an attempt to evade the tax has been made out. All the necessary documents relating to crane was voluntarily submitted at the check-post and hence on the fact, no possible inference of attempt to evade the tax can be made. It is a settled principle of law that penalty under Section 15-A(1)(o) can be levied only when there was an attempt to evade tax. For the reasons mentioned above the order of the Tribunal is not sustainable and is accordingly set aside.
In the result, the revision is allowed and the order of Tribunal is set aside and penalty levied under Section 15-A(1)(o) is quashed.