IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 4TH JUNE 2009 / 14TH JYAISHTA 1931 OP.No. 28530 of 2001(U) ---------------------------------- PETITIONER: ------------------- M/S. VALLABHDAS KANJI LIMITED, BEACH ROAD, ALAPPUZHA, REPRESENTED BY ITS GENERAL MANAGER (COMMERCIAL), SRI. V.H.V. NAMBOOTHIRI. BY ADV. MR.K.SRIKUMAR. RESPONDENTS: ------------------------ 1. THE INTELLIGENCE OFFICER, SQUAD NO.III, AIT & ST, ERNAKULAM. 2. THE DEPUTY COMMISSIONER OF COMMERCIAL TAXES, ALAPPUZHA. 3. THE COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. 4. THE TAHSILDAR (R.R), AMBALAPPUZHA TALUK, ALAPPUZHA. R1 TO R4 BY GOVERNMENT PLEADER MR. K.P. PRADEEP. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 04/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 28530/2001-U: ORDER ON C.M.P. NO. 46400/2001 IN O.P. NO. 28530/2001-U DISMISSED 04/06/2009. SD/- V.K.MOHANAN, JUDGE. APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE OBJECTION DTD. 08/01/1997 FILED BY THE AUTHORIZED REPRESENTATIVE OF THE PETITIONER COMPANY. EXT.P.2: COPY OF THE PENALTY ORDER DTD. 20/01/97 ISSUED BY THE R.1. EXT.P.3: COPY OF THE REVISION PETITION FILED BY THE PETITIONER DTD. 25/03/1997. EXT.P.4: COPY OF THE REVISION ORDER DTD. 30/10/1999 ISSUED BY THE R.2. EXT.P.5: COPY OF THE REVISION PETITION FILED BEFORE THE R.3. BY THE PETITIONER DTD. 10/12/1999. EXT.P.6: COPY OF THE REVISION ORDER DTD. 24/01/2001 ISSUED BY THE R.3. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. V.K.MOHANAN, J. ---------------------------------------- O.P. No.28530 of 2001 ---------------------------------------- Dated, 4th June, 2009 JUDGMENT In this writ petition, the petitioner who is the assessee challenged Ext.P2 penalty order and, Exts.P4 and P6 orders in revision, by which, Ext.P2 order was confirmed. Assessment is relating to the year 1995-96. 2. The petitioner is a public limited company engaged in the manufacture of spice powder and export of spices and spices powders. It is also claimed that the petitioner is engaged in the sale of spices and spices powders for export. According to the petitioner, the first respondent summoned the account books of the petitioner for the year 1995-96 and on verification, found some discrepancies in the sale of spices for export. On the basis of the above finding, the Ist respondent issued Ext.P2 order of penalty invoking Section 45A of the KGST Act, overruling the objection raised by the assessee as per Ext.P1. Challenging O.P.28530/00 -:2:- Ext.P2, the petitioner assessee filed Ext.P3, the first revision petition before the 2nd respondent who dismissed the same by Ext.P4 order confirming Ext.P2. Again challenging Ext.P4 order, the petitioner preferred Ext.P5, the second revision petition, before the 3rd respondent which was also dismissed as per Ext.P6 order confirming Exts.P2 and P4 orders. Therefore the petitioner-assessee approached this Court preferring the above writ petition. 3. The main ground raised in this writ petition and during the course of hearing is that none of the authorities came into a conclusion that the petitioner- assessee has got mens rea to evade from paying tax in spite of the fact that such a contention raised before all the statutory authorities. According to the petitioner, dried chilies were sold for converting the same into oily resins for export and he was under the presumption that chilies when converted into oily resins still remained as chilies and he is entitled for the exemption. It is the O.P.28530/00 -:3:- further case that, based upon such presumption, the authorities were also prayed for exemption. It is also argued that the only case pointed out by the authorities in order to invoke Section 45A is that real transaction is not entered in the sales register kept by the assessee and the same cannot be treated as a ground for ascertaining the intention of the assessee. According to the petitioner, at the time of verification of the records, the assessee had produced all the records including the personal account register (ledger account) which contained all the details and therefore actually the assessee had no mens rea to evade from paying the tax as the ledger contained all the details and therefore it is submitted that the explanation offered by the assessee is sufficient to hold that there was no mens rea so as to evade tax and, therefore, no penalty can be imposed against the assessee by invoking Section 45A of the KGST Act. In support of the above points, the learned counsel very much placed reliance on the O.P.28530/00 -:4:- decisions in Kollanur Agencies v. Assistant Commissioner (1991(80) STC 177) and Sudhi v. Intelligence Officer (1992 (85) STC 337). The learned counsel for the petitioner vehemently argued that even though the above points were raised before the concerned authorities, no such points were considered and no finding is arrived on such legal question. Therefore, according to the learned counsel, the orders impugned are liable to be set aside. 4. The learned Government Pleader, after inviting my attention to Section 27 of the Act and Rule 32 (10), (11),(12), Rule 32(1)(i) and 32(3) and (4), submitted that the petitioner-assessee deliberately created documents and also failed to keep proper accounts regarding the transaction as required by the above provisions. On the strength of the decision of the Supreme Court in Assistant Commercial Taxes Officer v. M/s.Bajaj Electricals Ltd.,(2009) 17 KTR 120 (SC), the learned Government Pleader submitted O.P.28530/00 -:5:- that the failure on the part of the assessee in not giving the particulars in the books and accounts, which he is legally bound to maintain, are sufficient to invoke Section 45 A of the Act. It is also pointed out that in the present case, the methods adopted by the assessee is sufficient to constitute the element of mens rea. In support of the above contention, the learned Government Pleader pointed out that the assessee had filed the return based upon the figures shown in the sales register and the figures which claimed to have been shown in the ledger account was not the basis for the return submitted by the assessee. According to the learned Government pleader, the above fact itself is sufficient to hold that the assessee has deliberately maintained the said register without incorporating the real transaction and based upon such sales register, he preferred the return. Therefore, according to the learned Government Pleader, the orders issued by the Ist respondent imposing penalty against the assessee is O.P.28530/00 -:6:- perfectly legal and valid and consequently, Exts.P4 and P6 orders are also legally valid and not liable to be interfered with. 5. I have carefully considered the contentions raised by the learned counsel for the petitioner as well as the learned Government Pleader and also perused the materials on record. On a perusal of Ext.P2, it can be seen that, after considering Ext.P1 objection, Ist respondent himself had decided to drop the proceedings with respect to invoices Nos.6, 21, and 87. 6. In Ext.P2, the Ist respondent has specifically found after verification of the records that the bills/invoices raised have no continuity. They were not seen issued from a serial set kept. According to the first respondent, certain invoices are issued from the invoices of Vallabhdas Kanji “Ltd”. Next certain invoices are issued from Vallabhdas Kanji “Pvt.Ltd.”. Again they issued bills from the set by striking “Pvt. Ltd”. Serial numbers are not seen printed or serially machine O.P.28530/00 -:7:- numbered prior to the issue but seen assigned the numbers conveniently. There are some serial numbers (double numbers) each for different bills, viz.,62, 63, 65, 66, 69, 5,6,7,8,9,15 etc. It is found that some copies of the bills were not available in the set and not produced for verification. Details of sales not ascertainable on these. These are the finding of Ist respondent after verification of the records made available by the assessee to him. After considering the materials and also the objection, the ist respondent has found that the dealer had not accounted the sale of goods covered by their delivery notes for Rs.5,47,400/- and not conceded in the return filed before the assessing authority and thereby evaded tax due thereon. Though Ext.P1 objection was raised and the assessee was heard, no proper explanation was offered and no materials were produced before the Ist respondent to substantiate the contention raised by the petitioner. The fact remains is that it is beyond dispute O.P.28530/00 -:8:- that the assessee had submitted his return on the basis of the sale register which is not in conformity with the particulars contained in the personal account. There is no explanation as to why the assessee failed to submit the return on the basis of the transaction incorporated in the personal account. If that be so, I find no fault with the conclusion arrived by the Ist respodnnt as per Ext.P2. Consequently, Exts.P4 and P6 also warrant no interference. 7. The learned counsel for the petitioner submitted that though the petitioner has raised a contention before the authorities that there was no mens rea for the petitioner to evade from the payment of tax , the above said contention was not considered and no finding was arrived on such legal question. According to the learned counsel, in view of the decision in Kollanur Agencies v. Assistant Commissioner (1991(80) SCC 177) and Sudhi v. Intelligence Officer (1992 (85)STC 337), unless there is mens rea on the part of the assessee, O.P.28530/00 -:9:- and finding on that line, the penal provision under section 45 cannot be invoked against the assessee. Therefore, according to the counsel, though the legal question was raised, the same was not considered by any of the statutory authorities. I have gone through the decision cited by the learned counsel. On a reading of Section 45A of the Act, it can be seen that penalty can be imposed by the officers and authorities on his satisfaction of any of the grounds enumerated therein. The Apex Court, in a recent decision reported in Asst.Commercial Taxes Officer v. Bajaj Electricals Ltd., {(2009) 17 KTR 120 (SC)}, has held in para 8: “8. For the sake of convenience we reproduce important paragraphs from the judgment of this Court in the case of M/s.Guljag Industries (supra) as in our view the judgment in M/s.Guljag industries supra squarely applies to the present case: “ 9. Existence of mens rea is an essential ingredient of an offence. However, it is a rule of construction. If there is a conflict between the common law and the statute law, One has to construe a statue in conformity with the common law However, if it is plan O.P.28530/00 -:10:- from the statue that it intends to alter the course of the common law, then that plain meaning should be accepted. Existence of mens rea is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject matter with which it deals. A penalty imposed for a tax delinquently is a civil obligation, remedial and coercive in its nature, and is different from the penalty for a crime. 24. Form 18A, as quoted above, is in two parts, Part-A has to be filled in by the consignee, Part-B has to be filled in by the consignor. The nature of the transaction as to whether it is by consignment or by depot transfer or by interstate sale has to be indicated by the consignee. Similarly, the consignee has to indicate the description of the goods. In the present case the consignee (assessee) has left the requisite columns blank. Part-B has to be filled in by the consignor. Part-B requires the consignor to give the estimated value of goods. He has also to give invoice number and the date. It is important to note that the declaration form is collected by the consignee from his A.O. in the state of Rajasthan. The consignee given as undertaking to get Part-B filled by the consignor. Similarly, the consignee gives a declaration that facts stated in Part-A are true to his knowledge. In the present case, the entire form was left blank though it had been signed by the consignee. Therefore, the declaration given by O.P.28530/00 -:11:- the consignee is meaningless. There are no facts given in Part-A. There is no identity of the goods transported. There is no description of the goods in movement, As stated above, the original has to be placed before the A.O. by the officer at the beck- post. If the form which ultimately goes to the A.O. is blank in all material respects then it is impossible for the A.O. to assess the dealer and it is this practice which has resulted in loss of revenue in crores to the State. Without description of the goods imported, it is easy to manipulate the value. If the material particulars are not submitted, one fails to understand how assessment could be finalised. Moreover, as submitted on behalf of the State it has become a common practice to circulate the same form again and again resulting in loss of revenue to the State, It is for this reason that Rule 53 of RST Rules 1995 contemplates the form to be submitted duly filled in and duly completed. In the present case, the goods in movement were not supported by duly filled in Form No.18A/18C. Therefore, there was contravention of Section 78(2) of the RST Act, 1994. 25. There is dichotomy between contravention of Section 78(2) of the said Act which invites strict civil liability on the assessee and the evasion of tax. When a statement of import/export is not filed before the A.O., it results in evasion of tax. However, when the goods in movement are carried without the declaration form O.P.28530/00 -:12:- No.18A/18C then strict liability comes in, in the form of Section 78(5) of the said Act. Breach of Section 78(2) imposes strict liability under Section 78(5) because as stated above goods in movement cannot be carried without Form No.18A/18C. 26. We are not concerned with non- filing of statements before the A.O. We are concerned with the goods in movement being carried without supporting declaration forms. The object behind enactment of Section 78(5) which gives no discretion to the competent authority in the matter of quantum of penalty fixed at 30 per cent of the estimated value is to provide to the state a remedy for the loss of revenue. The object behind enactment of Section 78(5) is to emphasise loss of revenue and to provide a remedy for such loss. It is not the object of the said Section to punish the offender for having committed an economic offence and to defer him from committing such offence. The penalty imposed under the said Section 78(5) is a civil liability. Willful consignment is not an essential ingredient for attracting the civil liability as in the case of prosecution. Section 78(2) is a mandatory provision. If the declaration Form 18A/18C does not support the goods in movement because it is left blank then in that event Section 78(5) provides for imposition of monetary penalty for non compliance. 27. Default or failure to comply with Section 78(2) is the failure/default of statutory civil O.P.28530/00 -:13:- obligation and proceedings under Section 78 (5) is neither criminal nor quasi criminal in nature. The penalty is for statutory offence. Therefore, there is no question of proving of intention or of mens rea as the same is excluded from the category of essential element for imposing penalty. Penalty under section 78(5) is attracted as soon as there is contravention of statutory obligations. Intention of parties committing such violation is wholly irrelevant. 28. Moreover, in the present case, we find that goods in movement carried with Form No.18A/18C. The modus operandi adopted by the assesses itself indicates mens rea. This is not the case where goods in movement are carried without the declaration forms. In the present matter, as stated above, goods in movement were carried with the declaration forms. These forms were duly signed, however, material particulars were not filled in. The explanation given by the assessees in most of the cases is that they are not responsible for the misdeeds of the consignors. The other explanation given by the assessees is regarding the language problem. There is no merit in these defences. They are excuses. The declaration forms were unfilled so that they could be used again and again. The forms were collected by the consignees from the said Department. The consignee undertakes to see that the value of the goods is supplied by the consignor. It is not open to the consignee to keep the column in respect of the description O.P.28530/00 -:14:- of goods as blank. Even the column dealing with nature of transaction is left blank. The consignee is the buyer of the goods. He knows the descriptions of the goods which he is supposed to buy. There is no reason for leaving that column blank. Therefore, there are no special circumstances in any case for waiver of penalty for contravention of Section 78(2). The assesses were fully aware that the goods in movement had to be supported by Form ST 18A/18C. Therefore, they made the goods traveled with the forms. However the said forms are left blank in all material respects Therefore, A.O was right in drawing inference of mens rea against the assessees. 29. It has been repeatedly argued before us that apart from the declaration forms the assessees possessed documentary evidence like invoice, books of accounts etc. to support the movement of goods and, therefore, it was open to the assessees to show to the competent authority that there was no intention to evade the tax. We find no merit in this argument. Firstly, we are concerned with contravention of Section 78(2) which requires the goods in movement to travel with the declaration in Form 18A/18C duly filled in. It is Section 78(2)(a) which has been contravened in the present case by the assesses by carrying the goods with blank form though signed by the consignee. In fact, the assesses resorted to the above modus operandi to hoodwink the competent officer at the check-post. As stated above, if the O.P.28530/00 -:15:- form is left incomplete and if the description of the goods is not given then it is impossible for the assessing officer to assess the taxable goods. Moreover, in the absence of value/price it is not possible for the A.O. to arrive at the taxable turnover as defined under Section 2 (42) of the said Act. Therefore, we have emphasised the words “material particulars” in the present case. It is not open to the assesses to contend that in certain cases of interstate transactions they were not liable in any event for being taxed under the RST Act 1994 and, therefore, penalty for contravention of Section 78(2) cannot be imposed. As stated herein above, declaration has to be given in form 18A/18C even in respect of goods in movement under interstate sales. It is for contravention of Section 78(2) that penalty is attracted under section 78(5). Whether the goods are put in movement under local sales, import, exports or interstate transactions, they are goods in movement therefore, they have to be supported by the requisite declaration, It is not open to the assessee to contravene and say that the goods were exempt. Without disclosing the nature of transaction, it cannot be said that the transaction was exempt. In the present case, we are only concerned with the goods in movement not being supported by the requisite declaration. 32. In the present case, the assessees have relied upon the judgment of this Court in the case of State of Rajasthan and Another v.D.P. O.P.28530/00 -:16:- Meals (JT 2001 (8) SC 328). In that case the facts were as follows. The assessee firm manufactures stainless steel sheets. The assessee was a registered dealer. On 22.1.97 a truck was inspected by CTO. The same was found without Form 18A. A show cause notice was inspected by CTO. The seem was found without Form 18A. A show cause notice was issued to the assessee. After hearing a penalty was levied under section 78(5) of the RST Act 1994. It was held that under Section 78(5) levy of penalty was on the person in charge of the goods. It was held that the said penalty was leviable under two circumstances. Firstly, if there was non- compliance of Section 78(2)(a) of the said Act, namely, that it was not carrying the documents mentioned in that clause. Secondly, if false or forged documents/declaration was submitted then penalty under section 78(5) was leviable. After analysing the said Section, this Court held that in the case of submission of false or forged documents/declaration, the authority was entitled to presume the motive to mislead the authorities. However, such cases that the presumption was rebuttable by the assessee on producing the requisite documents referred to in Section 78(2)(a). That, once the ingredient of Section 78(5) stood established after giving a hearing, there was no discretion with the officer to reduce the amount of penalty or to waive the penalty. If by mistake some of the documents were not readily available at the time of checking, O.P.28530/00 -:17:- principles of natural justice might require opportunity being given to produce the same. It was further held that under Section 78(5) the legislature has fixed the rate of penalty and, therefore, the quantum of penalty could not be waived or reduced. 33. In our view, the aforestated judgment in the case of D.P. Metals (supra) has no application to the present case. We are not concerned in the present case with false or forged documents/declaration. In the present case the goods in movement were carried with the blank declaration Form 18A/18C which was duly signed by the assessee. Therefore, as stated above, we hold that the goods in movement were carried without the declaration Form 18A/18C. Therefore, Section 78(2)(a) stood attracted. Moreover, in the present case, there were no special circumstances indicated by the assessee as to why the forms which were duly signed were not filled in. Therefore, in our view the above judgment in the case of D.P.Metals (supra) has no application to the facts of the present case. As stated, we are concerned with the blank declaration Form 18A/18C which has traveled with the goods in movement, though signed, was left deliberately blank. The declaration Form 18A/18C is like a return under the Income-Tax Act 1961. The Assessing Officer completes the assessment on the basis of Form 18A/18C. If that form is left blank in all material respects then it is impossible for the A.O. to arrive at the taxable O.P.28530/00 -:18:- turnover of the assessee. Therefore, in our view, the judgment of this Court in D.P.Metals (supra) has no application to the present case”. Therefore, following the above decision, I am of the view that, if the authorities and officers are satisfied that there is violation of any of the provisions enumerated in Section 45 A of the Act, they can impose penalty and for that purpose, there need not be any enquiry regarding the intention of the assessee and a finding of mens rea. When a person or authority who is bound to do or keep to follow certain procedure in the manner provided by the statute, and, on his failure in following such procedure itself is sufficient to hold that he is liable for the penal action contemplated. The order of imposing penalty is not a criminal proceedings, but certainly, on the basis of the violation of the statutory provisions or failure in complying with the statutory requirement. Therefore, in the absence of finding of mens rea, penalty as contemplated under O.P.28530/00 -:19:- section 45A can be imposed. In this particular case, the Ist respondent in Ext.P2 has also found very serious irregularities and illegalities in keeping the records in tact. It is also a fact beyond dispute that the assessee had submitted the return on the basis of the endorsement he made in the sales register which did not reflect the actual transaction, viz., the sales. It is also a fact that the return submitted by the assessee was