- (1.) This order shall dispose of C.W.P. Nos. 8689 and 10940 of 2002, as according to the learned counsel for the parties, the issue involved in both the petitions is common. However, the facts are being extracted from C.W.P. No. 8689 of 2002. Prayer in C.W.P. No. 8689 of 2002 filed under article 226/227 of the Constitution of India is for issuance of a writ of mandamus to quash the order dated May 19, 2001, annexure P13, passed by the respondent-Excise and Taxation Officer and for cancellation of penalty upheld by the Sales Tax Tribunal, vide order dated January 14, 2002, annexure P18.
(2.) A few facts relevant for the decision of the controversy involved, as narrated in C.W.P. No. 8689 of 2002 may be noticed. The petitioner is a dealer registered under the provisions of the Haryana General Sales Tax Act, 1973 (in short, "the HGST Act") as well as Central Sales Tax Act, 1956 (in short, "the CST Act"). It is engaged in the business of manufacturing of laminated sheets. It is maintaining regular books of account and other relevant record. The petitioner has many imported plants and machinery which are repaired in India during the normal course of wear and tear. Press moulds/S.S. plates being the same thing made of stainless steel are also the capital goods under the head of plant and machinery which are used to give particular finish to the laminates and need repolishing after use in the press. This work is also done by SESA MSF Pvt. Limited, Neemrana, Rajasthan ("M/s. Sesa", in short). The petitioner imported press moulds/S.S. plates from various foreign companies. On April 27, 2001, the petitioner-company sent certain goods for the purpose of repair to M/s. Sesa. For this purpose, the petitioner issued challan, annexure P1 as provided under the Central Excise Rules, 2002. The value of the goods was estimated to be Rs. 12 lacs. The petitioner was supplied form ST-18-A, annexure P2, issued by the Government of Rajasthan to M/s. Sesa as provided under the provisions of the Rajasthan Sales Tax Act, 1994. The petitioner itself also issued form ST 38, annexure P3, prescribed under the Haryana General Sales Tax Rules, 1975 (in short, "the HGST Rules") by the Government of Haryana. All these three papers were accompanying the goods when these were sent for necessary repair, etc., to M/s. Sesa on April 27, 2001. After repair when these goods were in transport, the Excise and Taxation Officer, checked the vehicle and the goods on May 17, 2001 at 3.30 p.m. and detained the same on the ground that ST 38 form produced was blank and the goods were not covered with genuine and proper documents as required under section 37(2) of the Act. After the goods were detained vide notice, dated May 17, 2001, annexure P7, the petitioner-company's representative appeared before the authority and produced copies of documents showing the import of the material regarding plant and machinery, purchase order and commercial invoice. After examining the matter, the Excise and Taxation Officer (ETO) imposed penalty of Rs. 3,60,000 vide order dated May 19, 2001, annexure P13. Aggrieved by the order, the petitioner filed appeal before the Joint Excise and Taxation Commissioner (A), Vide order dated August 27, 2001, annexure P17, the appeal was dismissed and the order of the ETO was upheld. The petitioner filed further appeal before the Tribunal. Vide order dated January 14, 2002, annexure P18, impugned herein, the appeal was partly allowed, reducing the penalty from Rs. 3,60,000 to Rs. 1,80,000. It was observed that though the petitioner was an exempted unit, yet the requirement of carrying a duly filled ST 38 form was binding. Hence the present petition by the petitioner.
(3.) The learned counsel for the petitioner submitted that the petitioner-unit was exempted from payment of tax under section 13B of the HGST Act and therefore, there was no attempt to evade tax under section 37(6) of the Act. The original form ST-38 which was to be filled by the consignee dealer of Haryana before sending it to Rajasthan was inadvertently missed as all the information was with the said dealer. It was urged that there was no mens rea on the part of the petitioner to evade tax in view of judgments of this court in Delhi Assam Roadways Corporation Ltd. v. State of Haryana, 2001 123 STC 272(P & H) and Crown Gaskets (India) v. Asstt. Excise & Taxation Officer, Bahadurgarh, 2004 137 STC 340(P & H) : [2003] 22 PHT 413. There being no attempt to evade tax, penalty sustained by the Tribunal was uncalled for.;