Indian Kanoon - Search engine for Indian Law

22.T.T.R. No. 465 of 2014 :- The facts were that on 25.2.2011 truck no. HR 55M / 5175 loaded with the goods was intercepted by the Mobile squad unit 8, Ghaziabad. The goods were found accompanied with form 38 in which column no. 6 was left totally blank and there was over writing in G.R.. On these facts the goods were seized and the same were released on deposit of security. Subsequently, penalty proceeding was initiated and the penalty of Rs. 6,50,000/- was imposed under Section 54(1)(14) of the Act. The explanation of the assessee was that the mistake was because of human error and further that the goods were not for sale but for use as raw material. The First Appellate Authority dismissed the appeal of the assessee and upheld the levy of penalty. Second appeal filed by the applicant before the commercial tax tribunal, Ghaziabad was allowed by the tribunal vide impugned order dated 4th March, 2014 and the penalty under Section 54(1)(14) of the Act was set aside. Tribunal recorded the findings that the assessee purchased goods against purchase order. The purchase was made against Form-C which was issued, goods were asccompanied with test report dated 18.2.2017 bill No.001541 dated 19.2.2012 and form-38. Not mentioning the date in Column No.6 of Form-38 was due to human error. On the basis of the aforesaid excise invoice, Cenvat Credit was taken. The goods in question and payment were duly recorded in the books of account. The Tribunal held that there was no intention to evade payment of tax.

The findings recorded by the tribunal cannot be sustained on the facts and circumstances of the present case. The assessing authority has recorded clear finding that cash memo or bill number and date was not filled up in the column no. 6 in form 38. There was over writing in the G.R. A tax invoice no. 947 dated 19.2.2012 was issued by M/s Unicorn Petrolium, Industries Pvt. Ltd. Mumbai in which on tax invoice number and date fluid was applied and the over writing was done and the date was changed. These three discrepancies collectively indicated that it was not because of human error or clerical mistake. The assessing authority held that these three discrepancies considered collectively clearly established the intention to evade payment of tax. The tribunal has merely observed that non filling of column no. 6 was a human error. Under the circumstances the findings of the tribunal that there was no intention to evade payment of tax cannot be sustained. In result, the revision succeeds and is hereby allowed. The impugned order of the tribunal is set aside and the matter is remitted back to the tribunal to consider the entire facts and circumstances of the case and the findings recorded by the assessing authority and the first appellate authority in the light of the evidences available on record and thereafter pass a fresh order in accordance with law without being influenced by any of the observations made above.