JUDGMENT Prakash Krishna, J.
1. The present revision is directed against the order dated October 26, 1991 passed under Section 15-A(l)(o) of the U.P. Sales Tax Act, 1948 (hereinafter referred to as "the Act"). The applicant is a registered dealer. The dispute relates to the assessment year 1987-88. It carried on the business of selling yarn including Resham yarn. It purchased 25 bales of resham yarn valued at Rs. 10,11,433.50/- from M/s. Sugandha Brothers, Howrah. The entire lot of 25 bales of resham yarn was brought from Howrah to Mughalsarai as personal luggage through Kalka Mail on October 7, 1987. On reaching Mughalsarai on October 8, 1987 the goods were booked from Mughalsarai to Varanasi vide Railway receipt No. P/167427 and P-167428. Varanasi is not en route of Kalka Mail. Form XXXI was got endorsed by the officer referred to in Sub-section (3) of section 28-A of the Act on October 27, 1987. A penalty proceeding after issuing show cause notice, was issued by the assessing authority on the allegation that the applicant on October 8, 1987 imported twenty-five bales of Resham yarn and failed to get endorsement on form XXXI by the next following working day. The endorsement was obtained from the officer concerned on October 27, 1987. In reply it was submitted that 25 bales of Resham yarn was booked from Mughalsarai to Varanasi by Train No. 49 Up, the earliest available train and the entire lot of 25 bales so imported from Howrah to Varanasi remained in the custody of railway authorities right from October 7, 1987, the day on which the same was put on break van of Kalka Mail as the personal luggage at Howrah station and physical possession of the same was all along with the railway till actual delivery of the goods was taken in terms of the High Court's order. It so happened that the goods were seized by the Enforcement Department at Varanasi on the belief that the goods were of foreign made. Subsequently in pursuance of the order passed by this Court in a proceeding under Section 482 of the Code of Criminal Procedure, 1898 the goods were ordered to be released. The Sales Tax Officer after taking into considering the entire facts and circumstances of the case passed the penalty order imposing penalty of Rs. 4,80,000/- vide order dated February 25, 1988. The quantum of penalty was reduced vide first appellate authority to Rs. 72,600/- vide order dated November 5, 1990. In second appeal the Tribunal has further reduced the penalty to Rs. 48,400/-, i.e., twice the amount of tax and additional tax due vide order dated October 26, 1991. Still feeling dissatisfied present revision has been filed by the dealer-applicant on the ground that on the facts and circumstances of the case no penalty is leviable.
2. Heard learned counsel for the parties and perused the record.
3. Sri Kunwar Saxena, learned counsel for the applicant, invited my attention towards Sub-section (4) of Section 28-A of the Act and submitted that no default was committed by the applicant and, as such, penalty under Section 15-A(l)(o) of the Act is not sustain-able. Elaborating the argument it was submitted that Sub-section (4) of Section 28A of the Act be interpreted in such a manner that the endorsement by the officer concerned be obtained by the next working day from the date the goods reached to its destination. The Tribunal has committed illegality in holding that the endorsement by the next working day should have been obtained by the next working day when the goods in question reached Mughalsarai. The goods were brought in the State of U.P. from Howrah at Mughalsarai and thereafter it was handed over to the railway administration for delivery of the goods through City Booking Agency at Varanasi. In contra, learned Standing Counsel submitted that on true and correct interpretation of Sub-section (4) of Section 28-A the order passed by the Tribunal is perfectly justified and no interference is called for from this Court.
4. Heard learned counsel for the parties and before proceeding further it is relevant to have a look to Sub-section (4) of Section 28-A of the Act. The said Sub-section (4) reads as under:
"Section 28-A. Import of goods into the State against declaration.--
(1) to (3).........
(4) Where such goods are brought into the State as personal luggage, the person bringing them shall carry with him the declaration in the prescribed form duly filled in and signed by the importer, and the importer shall submit the same for endorsement by the officer referred to in Sub-section (3) by the next working day."
5. Section 28-A of the Act provides submission of declaration form by any person who intends to bring, import or otherwise receive into State from any place outside the State any goods liable to tax. Sub-section (3) of Section 28-A of the Act prescribes a procedure for submission of declaration form when such goods are consigned by railways, river, air or post. Sub-section (4) prescribes a procedure of submission of prescribed form, which is form XXXI when such goods are brought in the State of U.P. as personal luggage. On perusal of Sub-section (4) two things emerges. The goods should accompany declaration in prescribed form (form XXXI) duly filled in and signed by the importer and secondly, the importer shall submit the same for endorsement by the officer, referred to in Sub-section (3) by the next working day. The language of Sub-section (4) is plain and simple and there is no ambiguity in it. However, Sri Saxena submits that this provision should be interpreted in such a manner that submission of form for endorsement by the next working day should mean the day when goods reached the destination of the importer, i.e., place of business of the importer, may be shop, godown, etc. Otherwise Sub-section (4) shall cause undue hardship to a dealer. What hardships would be caused if the said interpretation as suggested by Sri Saxena is not accepted, could not be explained by him. In reply only this much was submitted that this appears to be intention of the Legislature. Before proceeding further at this stage it is necessary to notice relevant rules of interpretation governing interpretation of taxing statute. Supreme Court in the case of J.P. Bansal v. State of Rajasthan AIR 2003 SC 1405, para 12, has observed as follows :
"Interpretation postulates the search for the true meaning of the words used in the statute as a medium of expression to communicate a particular thought. The task is not easy as the 'language' is often misunderstood even in ordinary conversation or correspondence. The tragedy is that although in the matter of correspondence or conversation the person who has spoken the words or used the language can be approached for clarification, the Legislature cannot be approached as the Legislature, after enacting a law or Act, becomes functus officio so far as that particular Act is concerned and it cannot itself interpret it. No doubt, the Legislature retains the power to amend or repeal the law so made and can also declare its meaning, but that can be done only by making another law or statute after undertaking the whole process of law-making."
6. In another case Supreme Court in the case of D. Saibaba v. Bar Council of India (2003) 4 JT 435 (SC) in para 16 quoted a passage form the book authored by Justice G.P. Singh in Principles of Statutory Interpretation which reads as under:
"It may look somewhat paradoxical that plain meaning rule is not plain and requires some explanation. The rule, that plain words require no construction, starts with the premises that the words are plain, which is itself a conclusion reached after construing the words. It is not possible to decide whether certain words are plain or ambiguous unless they are studied in their context and construed."
7. In Prakash Nath Khanna v. Commissioner of Income-tax [2004] 266 ITR 1 (SC); (2004) 2 JT SC 510, in para 13, Supreme Court has held that it is not open to a Court to read anything into the statutory provision, which is plain and unambiguous. The relevant portion is quoted below :
"It is well-settled principle in law that the court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the Legislature. The language employed in a statute is the determinative factor of legislative intent. The first and primary rule of construction is that the intention of the legislation must be found in the words used by the Legislature itself. The question is not what may be supposed and has been intended but what has been said."
8. A division Bench of this Court in Bharat Pumps and Compressors Ltd. v. State of U.P. 1995 UPTC 256 in paras 7 and 8 of the report has made following observation with regard to the principle of interpretation of taxing statute :
"7. It is now well-established, a taxing statute is to be strictly construed. A fiscal statute cannot be construed to tax on the doctrine of 'substance of matter', not even on the 'spirit of law' or by 'inference of analogy'. There cannot be equitable considerations or equity about a tax. Either he is within the fiscal statute or does not come. By inference, analogy, equity or sympathetic considerations the ordinary, normal, clear meaning of the words of statute should not be stretched. Viscount Simon quoted with approval passage from Rowlatt, J., which is to the same effect in (1945) 2 All ER 499 (HL) 507 (Canadian Eagle Oil Company Limited v. R.) :
'In a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used.'
8. This has been relied in [1964] 53 ITR 100 (SC); AIR 1964 SC 1742 (1744) Banarsi Debi v. Income-tax Officer and the relevant para 8 is quoted as under :
'Before construing the section it will be useful to notice the relevant rules of construction of a fiscal statute. In Oriental Bank Corporation v. Wright (1880) 5 AC 842 at page 856, the Judicial Committee held that if a statute professed to impose a charge, the intention to impose a charge, subject must be shown by clear and unambiguous language. In Canadian Eagle Oil Co. Ltd. v. R. 1946 AC 119 at 140 Viscount Simon L.C. observed:
"In the words of Rowlatt J......... in a taxing Act one has to look at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used". ' In other words, a taxing statute must be couched in express and unambiguous language. The same rule of construction has been accepted by this Court in Gursahai Saigal v. Commissioner of Income-tax, Punjab [1963] 48 ITR 1 (SC) ; AIR 1963 SC 1062.
'It is well-recognised that the rule of construction that if a case is not covered within the four corners of the provisions of a taxing statute, no tax can be imposed by inference or by analogy or by trying to probe into the intention of the Legislature and by considering what was the substance of the matter applies only to a taxing provision and has no application to all provisions in a taxing statute. It does not apply to a provision not creating a charge for the tax but laying down the machinery for its calculation or procedure for its collection. The provisions in a taxing statute dealing with machinery for assessment have to be construed by the ordinary rules of construction, that is to say, in accordance with the clear intention of the Legislature, which is to make a charge levied effective.' To the similar effect is also the case reported in [1991] 187 ITR 182 (SC) ; AIR 1991 SC 218 (220) (Sutlej Cotton Mills Ltd. v. Commissioner of Income-tax, West Bengal). Hence argument that since tax payable by petitioner in both cases is 4 per cent is unsustainable as it is based on possible inferences, analogy and on equitable considerations. This part, even if it could be said, petitioner could have been issued form III-B instead of form III-D, petitioner has to prove not only that goods purchased was for production but was a raw material within the meaning of Section 4-B to be used for production for manufacturing notified goods. This would be in the realm of facts, which could only be appropriately decided in proceedings in pursuance of the impugned notice. Thus on this ground impugned notice could not be construed as jurisdictional error."
9. Further Supreme Court in the case of Federation of Andhra Pradesh Chambers of Commerce and Industry v. State of Andhra Pradesh [2001] 247 ITR 36 at page 39 has made following observations :
"A taxing statute is to be strictly construed. In the illuminating words of Lord Wensleydale and reaffirmed by Lord Halsbury and Lord Simon, 'the subject is not to be taxed without clear words for that purpose; and also that every Act of Parliament must be read according to the natural construction of its words' (See Micklethwait, In re [1855] 11 Exch 452, Tenant v. Smith [1892] AC 150 (HL) and Saraswati Sugar Mills v. Haryana State Board AIR 1992 SC 224). In a classic passage, Lord Cairns stated that 'if the person sought to be taxed comes within the letter of the law, he must be taxed however great the hardship may appear to the judicial mind to be [see Partington v. Attorney General [1869] LR 4 (HL) 100 referred to in J.K. Steel Ltd. v. Union of India AIR 1970 SC 1173 and Ransam, (Inspector of Taxes) v. 'Higgs [1974] 3 All ER 949 (HL)]."
10. Supreme Court in the decision reported in Commissioner of Income-tax v. J.H. Gotla [1985] 156 ITR 323 has observed as follows :
"If a strict and literal construction of the statute leads to an absurd result, i.e., a result not intended to be subserved by the object of the legislation ascertained from the scheme of the legislation, then, if another construction is possible apart from the strict literal construction, then, that construction should be preferred to the strict literal construction.
Where the plain literal interpretation of a statutory provision produces a manifestly unjust result which could never have been intended by the Legislature, the court might modify the language used by the Legislature so as to achieve the intention of the Legislature and produce a rational result."
11. What is even more significant is the observation of the court in this case wherein it was observed (head note):
"Though equity and taxation are often strangers, attempts should be made that these do not remain always so and if a construction results in equity rather than in injustice, then such construction should be preferred to the literal construction."
12. In a subsequent decision reported in Saroj Aggarwal v. Commissioner of Income-tax [1985] 156 ITR 497 (SC) again the Supreme Court observed as follows (head note):
"Facts should be viewed in natural perspective, having regard to the compulsion of the circumstances of a case. Where it is possible to draw two inferences from the facts and where there is no evidence of any dishonest or improper motive on the part of the assessee, it would be just and equitable to draw such inference in such a manner that would lead to equity and justice. Too hypertechnical or legalistic approach should be avoided in looking at a provision which must be equitably interpreted and justly administered."
13. In the matter relating to the Central Excise Act (Easland Combines v. Collector of Central Excise, Coimbatore AIR 2003 SC 843 in para 15), it has been held that it is well-settled law that merely because the law causes hardship, it cannot be interpreted in a manner so as to defeat its object. It is also to be remembered that the courts are not concerned with the legislative policy or with the result, whether injurious or otherwise, by giving effect to the language used nor it is the functioning of the court where the meaning is clear not to give effect to it merely because it would lead to some hardship. It is the duty imposed on the courts in interpreting the particular provision of law to ascertain the meaning and intendment of the Legislature and in doing so, it should be presumed that the provision was designed to effectuate a particular object or to meet a particular requirement.
14. Keeping in view the aforesaid principles of interpretation of taxing statute it is clear from the plain reading of Section 28-A of the Act that it prescribes certain procedure to be followed by any person who intends to bring, import or otherwise receive in the State any goods from outside the State by any means of transport or when the goods are brought in the State as personal luggage. Sub-section (4) of Section 28-A of the Act on its plain language provides that goods should accompany with declaration form and the declaration form should be submitted for endorsement by the next working day. The phrase "by the next working day" if read along with other words used in the aforesaid section clearly signifies that endorsement of declaration form should be submitted as soon as goods are received within State as personal luggage by the next working day. Indisputably the goods were brought to Mughalsarai as personal luggage of the dealer. The goods were with the dealer and there is no question of taking any delivery. It is a different thing that the goods were placed in a break van for safe transportation. The view of the Tribunal that form should have been submitted for endorsement by the next working day of the reaching of the goods at Mughalsarai on the plain reading of Sub-section (4) of Section 28-A is perfectly justified. If the meaning as suggested by learned counsel for the applicant is given to Sub-section (4) of Section 28-A of the Act the next working day would be the next working day after delivery of the goods by the railway administration and would amount to adding of word "delivery" in the aforesaid Sub-section. Learned counsel then urged that unless and until goods reached at the destination or business place of the applicant the period for submission of form XXXI by the next working day would not start, in my view, has no substance. The idea of prescribing the period by the next working day is to inform the department as soon as possible. The question of start of the period after delivery of the goods does not arise when the goods are being brought in the State of U.P. as personal luggage as importer has possession of the goods in question.
15. Then it was urged that mens rea should be read under Section 28-A(4) as it is a penal provision, in case the importer fails to obtain endorsement within the prescribed time. The said argument has no merit. Supreme Court as far as back in the year 1977 in the case of R.S. Joshi, Sales Tax Officer v. Ajit Mills Limited [1977] 40 STC 497 (SC); 1979 UPTC 171 while interpreting the provisions of the Bombay Sales Tax Act rejected the theory of mens rea in taxing statute. The said judgment has been given by a Bench consisting of seven honourable Judges. It has been held that a classical view that "no mens rea no crime" has long ago been eroded and civil laws in India and abroad, specially regarding economic crime and departmental penalties have created several punishments even where the offences have been defined to exclude mens rea. In the case of Director of Enforcement v. Municipal Corporation Limited (1996) 1 JT 79 (SC) after quoting the following passage from Corpus Juris Secundum, Vol. 85, at page 580 expressed its agreement with the view expressed therein :
"The penalty imposed for a tax delinquency is the civil obligation, remedial and coercive in its nature and it is far different from the penalty for crime or fine or forfeiture provided as punishment for violation of criminal or penal laws."
16. Lastly it was submitted that in any view of the matter penalty should be imposed to the amount equivalent to the tax. Looking to the facts and circumstances of the case I think interest of justice would be served if quantum of penalty is reduced to the amount of tax. The consequential amount of penalty is reduced to Rs. 24,200/-
17. In the result the revision is allowed in part, as indicated above.