ASHWANI KUMAR MISHRA,J. - (1.) The assessee is aggrieved by an order of penalty imposed upon it under Section 15-A (1)(o) on account of technical breach that Form- 38 was not completely filled. It is recorded in the order of Tribunal that in the declaration, accompanying import of goods, details of bill number, vehicle number and date was not mentioned, which led to an inference drawn that same form could be used for importing more such machines.
(2.) Learned counsel for the revisionist points out that the assessee is engaged in the business of testing in all kind of hard and soft goods, as per international standard and the machine imported was of a specialised kind, which is not usually used else where. It is stated that specification of machine was given in the declaration, and there was no possibility of any misuse on account of certain columns having been left blank. It is also stated that in case the same declaration form is to be used again, the assessee would have to import another machine after paying custom duty which seems quite improbable. Reliance is placed upon decision of this court in M/s Flosyn Fragrance, Noida v. Commissioner of Trade Tax, U.P., Lucknow, 2005 NTN (26) 405 to contend that there was no attempt to evade tax and necessary ingredients to impose penalty were non existent.
(3.) Learned Standing Counsel, on the other hand, submits that possibility of misuse could not be ruled out, if the complete details are not filled in the declaration form.;