VAP Appeal No. 27 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH --- VAT Appeal No. 27 of 2010 Date of decision: 20.8.2010 M/s. Benipal Steel Industries Mandi Gobindgarh --- Appellant Versus Deputy Excise and Taxation Commissioner, Jalandhar and others --- Respondents --- CORAM: HON’BLE MR. JUSTICE AJAY KUMAR MITTAL HON’BLE MR. JUSTICE MEHINDER SINGH SULLAR --- Present: Mr. Aman Bansal, Advocate for the appellant. --- AJAY KUMAR MITTAL, J. This order will dispose of VAT Appeal Nos. 27 to 32 of 2010 because the similar and identical controversy is involved in all of them. This appeal filed under Section 68 of the Punjab Value Added Tax Act, 2005 (for short “the Act”) at the instance of the assessee, is directed against the order dated 21.8.2009, passed VAP Appeal No. 27 of 2010 -2- by the Value Added Tax Tribunal, Punjab (in short “the Tribunal). Briefly, the facts giving rise to this appeal as enumerated therein are that the appellant is a dealer registered under the Act and is engaged in the business of iron and steel. In the year 2007, the appellant sold iron and steel goods to M/s. R.V. Traders, Nagpur, vide bill No. 62 dated 16.11.2007, for a sum of Rs. 9,03,661/- which were covered with G.R. No. 1680 dated 16.11.2007, issued by M/s. Sun Rise Cargo Movers, Mandi Gobindgarh. The goods were sold under proper and genuine documents, as required under Section 51(2)(4) of the Act. On 18.11.2007, the vehicle carrying M.S. Pipes from Mandi Gobindgarh to Nagpur was intercepted by the Excise and Taxation Officer-cum-Assistant Director (Investigation), Patiala, Punjab (respondent No.3). Though the appellant did its best to satisfy by means of all documents that were available at that time that it was a genuine transaction, yet the intercepting authority imposed a penalty of an amount of Rs.4,51,830/- on the appellant, under the provisions of Section 51(7) (c) of the Act, vide order dated 29.11.2007 (Annexure A-1). It was further pleaded on behalf of the appellant that at the relevant time of interception of the vehicle, the appellant was a patient of kidney failure and under advice for bed rest whereas his son had been a student and did not have any time to attend the proceedings or to produce the books of accounts etc. It was in these circumstances the penalty came to be imposed by respondent VAP Appeal No. 27 of 2010 -3- No.3. The appeal filed by the appellant before the Deputy Excise and Taxation Commissioner, Jalandhar Division, Jalandhar, Punjab against order Annexure A-1, was dismissed ex parte, vide order dated 4.9.2008 (Annexure A-2). The appellant filed further appeal before the Tribunal and the same was also dismissed, vide order dated 21.8.2009 (Annexure A-3). The challenge in this appeal is, thus, directed to all the three orders passed by the authorities under the Act. It has been averred that the following substantial questions of law arise for determination by this Court: 1- Whether the act on the part of the respondents to impose the penalty without taking into account that the transaction was a genuine, is legally sustainable in the eyes of law? 2- Whether the action on the part of the respondents to impose penalty only due to non-production of account books at the relevant time due to unavoidable circumstances, is legally sustainable in the eyes of law? 3- Whether the action on the part of the learned Tribunal to accept the appeal of the appellant in one case and to reject it in the other case is justified. 4- Whether the respondents were acting in an arbitrary manner from the beginning? VAP Appeal No. 27 of 2010 -4- 5- Whether the impugned orders are legally sustainable in the eyes of law? At the hearing before us, learned counsel for the appellant submitted that the transactions were genuine and the findings to the contrary recorded by the authorities below are not based on record. The counsel further submitted that though the appellant could not produce the invoice or the books of accounts at the time the checking of the vehicle had been carried out, but the same were produced later on. The counsel also submitted that simply for the reason that the books of accounts were not immediately made available to the authorities, the transactions of sale of goods could not have been held to be not genuine and, thus, the penalty imposed was untenable. In support of the contention, the counsel relied upon a judgment of this Court in Krish Pack Industries vs. State of Punjab, (2006) 28 PHT 27 (P&H). We have considered the submissions of the learned counsel. In our opinion, the non-production of invoice or the books of accounts at the time of inspection clearly establishes that the appellant was attempting to evade payment of tax under the Act as there was no reason not to produce the same before the inquiry officer. On a specific query being put to learned counsel for the assessee to disclose the reasons for non- production of the invoice or the books of accounts at the time of checking of vehicle, no plausible explanation could be submitted. VAP Appeal No. 27 of 2010 -5- In case the transaction had been genuine and recorded in the regular books of account then there was no occasion for the appellant not to produce the same at the time of checking either through its counsel or any authorized representative. Moreover, the goods were about ½ Km from the limits of Haryana which were going out of State and had crossed ICC at Khanauri without making any declaration as per law. The observations of the Tribunal made in the context can be noticed with advantage here: “Counsel for the appellant had produced invoice book before the Tribunal showing the copy of the bill in question and also produced certain accounts showing the entry in the books but the fact remains that neither the documents, i.e. copy of invoice nor account books were produced before the inquiry officer, in spite of demand. The goods were to go out of State. The vehicle had crossed ICC, Khanauri without making declaration in the prescribed form as required and then was intercepted when it was just half K.M. from in side Punjab and would have entered Haryana without compliance of mandatory provisions of Section 51(2) and (4) of the Punjab VAT Act.” This is a finding of fact based on record and, thus, cannot be interfered with. Counsel for the appellant has not been able to show the same to be illegal or perverse in any manner. VAP Appeal No. 27 of 2010 -6- Apart from the above, the counsel for the appellant by making reference to the orders of the Tribunal, Annexures A-4 and A-5 passed in the case of the present appellant itself, submitted that in the similar circumstances, the Tribunal had accepted the plea of the appellant but refused to accept it in the instant case. We do not find any force in this submission either. We have gone through the orders passed by the Tribunal in the case of the appellant. The same were passed in the individual fact situation of those cases wherein after appreciating evidence it was concluded that there was no attempt to evade tax in those transactions. The position herein is different. The reliance of the learned counsel for the appellant on Krish Pack Industries’s case (supra) is misplaced. The Tribunal again in that case after appreciating the factual matrix had held that mere admission of the driver was not sufficient to hold that an attempt to evade tax was made out under the Act. That is not the situation in the present case. In view of the above, there is no merit in the appeals and the same are consequently dismissed. (AJAY KUMAR MITTAL) JUDGE (MEHINDER SINGH SULLAR) August 20, 2010 JUDGE *rkmalik*