Court No. - 7
Case :- SALES/TRADE TAX REVISION No. - 362 of 2017 Applicant :- S/S Colgate Palmolive India Ltd.
Opposite Party :- The Commissioner Commercial Tax, U.P.
Counsel for Applicant :- Aditya Pandey Counsel for Opposite Party :- C.S.C.
Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri Aditya Pandey, learned counsel for the assessee-applicant and Sri B.K. Pandey, learned Standing Counsel.
2. The present revision has been filed by the assessee for the A.Y. 2007-08 imposed under Section 15A(1)(o) of the U.P. Trade Tax Act, 1948 (hereinafter referred to as 'the Act').
3. The revision has been heard on following question of law:
"Whether on the facts and circumstances of the case the Commercial Tax Tribunal was legally justified in confirming the levy of penalty under Section 15A(1)(o), in the absence of any finding that there was any intention to evade the payment of tax."
4. Admittedly, the assessee is a manufacturer of toiletries. Facts giving rise to the present proceedings are: it had been disclosed that the assessee has a depot at Haryana from where it had dispatched certain goods to it's depot at Ghaziabad inside the State of U.P. The goods so dispatched were admittedly accompanied with the stock transfer invoice; lorry receipt and; Form D-3 being the road permit issued under the Haryana Value Added Tax Act (hereinafter referred to as 'the Haryana Act'). In all the documents that were thus found accompanying the goods, the origin and destination were clearly mentioned as a depot of the assessee at Haryana to the depot of the assessee at Ghaziabad. No discrepancy was noted either with respect to the goods or any other entry made on those documents. Also, Form-35 was filled up by the driver of the truck at the time of seeking entry into the State of U.P. at the check post Bhopura. No discrepancy was noted even with respect to the entries made in that form. However, the import declaration form being Form-31 required to accompany such goods by virtue of Section 28A of the Act, was not found. It occasioned the seizure of goods and also issuance of the penalty notice of the assessee.
5. In it's reply, the assessee had explained that the transaction was one of stock transfer which was duly evidenced by all other documents found accompanying the goods namely, stock transfer invoice; lorry receipt and; Form D-3 under the Haryana Act, all of which have been filled up at the dispatch depot of the assessee at Haryana. No discrepancy was noted in those documents. Therefore, it is further submitted that mere absence of Form-31 which was produced along with the reply to the seizure notice, could not give rise to a penalty under Section 15A(1)(o) of the Act.
6. While the penalty was imposed by the Assessing Authority, the same has been sustained by the Tribunal on the reasoning that the import declaration form being Form- 31 was not accompanied with such goods, and that it was submitted with delay. Therefore, it has been inferred that the contravention of Section 28A of the Act was made out. Therefore, the penalty has been affirmed, though the quantum of penalty has been reduced by the Tribunal.
7. Learned counsel for the assessee submits that the authorities have acted in ignorance of all disputed facts being that the assessee had at the very beginning disclosed it's intent of bringing the goods into the Stae of U.P. by way of stock transfer, which stood established by the stock transfer invoice, lorry receipt as also the Form D-3 issued under the Haryana Act. He would submit that in face of road permit issued under Haryana Act, the transportation of goods from Haryana to Uttar Pradesh had been disclosed to a statutory authority, though at Haryana. That disclosure was not made in isolation but was consistent as the same disclosure was contained in the stock transfer invoice as also the lorry receipt.
8. Further, it has been submitted, the assessee produced the import declaration form soon upon the issuance of the show-cause notice proposing to seize goods. Therefore, it has been submitted that, the inadvertent error in not producing the form along with the goods, did not amount to a contravention as contemplated for the purpose of imposition of penalty. In this regard, reliance has been placed on two decisions of this Court in the case of M/s. Prakash Enterprises, Ghaziabad vs. CST reported in 2000-U.P.T.C. at page 1098 and a later decision of this Court in S/s. Ramesh Chandra Santosh Kumar Vs. CTT in Sales/Trade Tax Revision No. 529 of 2003, decided on 23.07.2010. In both decisions, the Court had opined that mere absence of Form-31 could not give rise to a penalty under Section 15A(1)(o) of the Act. Having taken note of the other documents wherein the transaction was duly disclosed and the further fact of production of Form-31 at the subsequent stage was found to have obliterated the error on part of the assessee in not producing Form-31, at the stage of detention of goods.
9. Sri Jagdish Mishra, learned Standing Counsel on the other hand submits that Form-31 being prescribed under Section 28A of the Act, it's non production amounted to a contravention of those provisions and, therefore, the penalty was wholly justified. Since, it is not disputed to the assessee that it did not produce the Form-31, it cannot be heard to say there was no contravention of Section 28A of the Act.
10. Having heard learned counsel for the parties, it is seen there was no evidence led by the revenue to establish that non-production of Form-31 at the first instance was a conscious act by the assessee. The further evidence that had been led by the assessee to establish that the transaction was one of stock transfer and was duly disclosed, merited acceptance. The fact that the assessee had filled up Form D-3 under the Haryana Act disclosing the transportation of goods to the statutory authority does appears to have raised presumption in it's favour that the transaction was not proposed to be concealed.
11. Leaving that apart, more crucially, it is seen that, while penalty may be imposed under Section 15A(1)(o) of the Act for contravention of Section 28A(6) of the Act, an intention to evade is sine qua non before the goods may be seized, by virtue of section 28A (6) of the Act. In the facts of the present case the no finding has been shown to have been recorded as to intention to evade tax. Penalty appears to have been levied merely on account of absence of Form 31 being produced at the first instance, when the goods reached the entry check post at Bhopura. In the undisputed facts of the case noted above and in light of the earlier decisions of this court in M/s. Prakash Enterprises, Ghaziabad vs. CST reported in 2000-U.P.T.C. at page 1098 and S/s. Ramesh Chandra Santosh Kumar Vs. CTT (supra) the penalty under section 15A (1) (o) of the Act could not be imposed.
12. Consequently, the above question of law is answered in the negative i.e. in favour of the assessee and against the revenue.
13. The present revision is accordingly allowed. Any amount deposited in pursuance of the penalty order may be refunded in accordance with law.
Order Date :- 19.12.2018 Prakhar