Asstt. STO Vs Indus Towers Ltd. (Kerala High Court)
In the present case the delivery chalan which accompanied the transport is one issued by the assessee respondent, over which the assessee has absolute control and could be subject to manipulation. The assessee having transported the goods with delivery chalan, could very well sell the goods if the transport is undetected and then tear it up, as also issue a chalan with the same number for the next transport. The intimation regarding the transport of goods to the Assessing Officer is not achieved by the mere issuance of a chalan under Section 55. This would be achieved only if there is a declaration under Section 138, which would ensure that the transaction is not otherwise and there is no diversion of the goods. This would establish the bonafides of the assessee and the transport, which could very well be checked and verified by the Department.
There is no dispute that in the present case the declaration uploaded was subsequent to the detention of the vehicle. This would not absolve the liability to tax and penalty under Section 129. As has been held in Guljag Industries and D.P. Metals when there is absence of a declaration in the prescribed form; mandatorily required to accompany a transport of goods, then there can be no automatic penalty. The transporter, consignor or the consignee should be given an opportunity to prove that there was in fact a declaration validly made, before the commencement of the transport and hence the ommission was only technical and venial in so far as the declaration not physically accompanying the transport. The violation would stand on a totally different footing, from a forged declaration or an incomlete or blank declaration accompanying the transport. Hence if the declration as in this case, was infact uploaded prior to the transport the assessee could be absolved from the penalty but otherwise penalty is an automatic consequence. The time when such declration was uploaded is crucial and a declaration made after the detention of the goods cannot lead to the assessee being absolved from the penalty.
Testing the facts emanating in this case with the dictum as laid down in Guljag Industries or even D.P. Metals, there can be found a clear case of violation of the Act and Rules as also mens rea. Guljag Industries had noticed that when the document accompanying the goods is absent, there should be an opportunity granted to the petitioner to rebut the presumption available of an attempt to evade tax by reason of the documents having not accompanied the goods. Answering this, we would think that the contention of adjudication under Section 129(3) being a mirage would also be answered. If the declaration was in fact uploaded before the commencement of the transport and by some means the driver was not able to produce it before the detention, definitely the consignor could prove that the declaration was uploaded before the transport. This would absolve the liability for penalty, since if the declaration had been uploaded prior to the transport, there is no mens rea on the consignor or the transporter and there could be found no intention of diversion of goods. However, a declaration made subsequent to the detention would not absolve the assessee from the liability. In fact in W.A.No.371 of 2018 there is a declaration made after detention; which cannot absolve the liability to penalty and also establish that there was no declaration made and uploaded prior to the transport. The fact of a declaration having been uploaded demolishes the contention of the respondent in W.A.No.699 of 2018 that it is physically impossible to upload the declaration for reason of absence of facilitation centers.
