Madhya Pradesh High Court
M/S Rci Logistic Secunderabad ... vs Commissioner Commercial Tax on 13 June, 2023
Author: Vivek Rusia
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CRA No. 380/2012
HIGH COURT OF MADHYA PRADESH : BENCH INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE HIRDESH
ON THE 13th OF JUNE, 2023
VALUE ADDED TAX APPEAL No. 5 of 2023
BETWEEN:-
M/S RCI LOGISTIC SECUNDERABAD THROUGH PANASONIC INDIA
PVT. LTD. AUTHORIZED SIGNATORY- GANESH KUMAR JAIN TIN
23751304203 ADDRESS: 28, LALARAM NAGAR, INDORE (MADHYA
PRADESH)
.....APPELLANT.
(SHRI ADITYA GOYAL, LEARNED COUNSEL FOR THE APPELLANT.)
AND
COMMISSIONER COMMERCIAL TAX INDORE (MADHYA PRADESH)
.....RESPONDENTS
(SHRI ANIKET NAIK, LEARNED DY. ADVOCATE GENERAL FOR
RESPONDENT/STATE.)
This appeal coming on for hearing on admission this day, JUSTICE
VIVEK RUSIA passed the following:
Heard on the question of admission.
JUDGMENT
1. The appellant has filed this appeal u/s. 53 of the M.P. VAT Act,
2002 (hereinafter referred to as "the Act of 2002" for short)
challenging the validity of the following final orders :
(i) Order dated 30.3.2013 passed by the Incharge Officer,
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Commercial Tax Check-post, Dongargaon Soyat Kala, District
Shajapur in Case No. 113/12-13 u/s. 57(8) of the Act of 2002;
(ii) Order dated 16.9.2013 passed by the Appellate Authority/ Dy.
Commissioner, Commercial Tax, Indore Division-3, Camp Ujjain in
Appeal No.04/SJR/2013(VAT); and
(iii) Order dated 19.10.2022 passed by M.P. Commercial Tax Appeal
Board, Bhopal (Bench Indore) in Case No.
A/257/CTAB/IND/13(VAT), period - 01.04.2012 to 31.03.2013.
The facts of the case, in short, are as under :
01- The appellant is a private limited company engaged in the
business of logistics and transportation of goods. The consignee -
M/s. Panasonic India Pvt. Ltd., Haryana engaged the appellant for the
transportation of its products from the State of Haryana to their own
branches in Indore (M.P.). One consignment in question was sent
against Invoice No.1201300902 dated 14.3.2012 for an amount of
Rs.19,75,983/-. It was sent vide Bilty. No.78661 dated 14.3.2012
accompanied by E-way Bill Form 49 No. ICJ14033203005341 which
was valid from 14.3.2013 to 12.4.2013. Admittedly, this serial number
was not detectable in a copy of Form 49 produced by the driver of the
truck while checking at the Check-post Dongargaon Soyat Kala,
District Shajapur. According to the appellant, on 19.3.2013 the
complete Form 49 along with Serial No. was furnished, but vide order
dated 30.3.2013 the Prescribed Authority wrongly imposed the penalty
of Rs.11,86,592/- on the appellant under the M.P. VAT Act 2002
( hereinafter referred to as "the Act of 2002" ). The appellant
furnished the Bank Guarantee of the aforesaid amount for the release
of the vehicle and the goods.
02- Being aggrieved by the aforesaid penalty order, the appellant
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preferred an appeal before the appellate authority after pre-deposit, but
the appellate authority dismissed the appeal vide order dated
16.9.2013 holding that the appellant was intending to evade the tax by
producing Form 49 with serial number.
03- Being aggrieved by the aforesaid two orders, the appellant
approached the M.P. Commercial Tax Appeal Board, Bhopal by way
of second appeal u/s. 46 of the Act of 2002. After examining the entire
material available on record, the Appellate Board vide order dated
19.10.2022 has dismissed the appeal. Hence, the appellant before this
Court by way of present appeal u/s. 53 of the Act of 2002.
04- The appellant has proposed the following substantial questions
of law for adjudication of this VAT appeal :
(i) Whether the Impugned Order has failed to appreciate that mens
rea or an intention to evade tax is essential for levy of penalty under
Section 57 of MP VAT Act and wrongfully impugned mens rea or a
guilty mind to the Appellant?
(ii) Whether the Impugned Order is against judicial discipline
inasmuch as it fails to even discuss, much less differentiate, the
precedents relied upon by the Appellant?
(iii) Whether the Impugned Order suffers by jurisdictional defect by
conflating issues and penalty under the MP VAT Act and Entry Tax
Act?
(iv) Whether the Impugned Order is against the principles of
nartural justice by not disclosing the enquiry carried behind the back
of the Appellant?"
05- Shri Aditya Goyal, learned counsel appearing for the appellant,
argued that the learned Assessing Authority, Appellate Authority as
well as the Appellate Board, have wrongly held the appellant guilty of
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attempting to evade tax. The Appellate Board in Para 5.11 of the
impugned order dated 19.10.2022 has wrongly held that the serial
number in Form 49 was concealed in order to use the same multiple
times. The Appellate Board has failed to examine that except for serial
number, all the entries in a copy of Form 49 produced by the driver of
the truck at the Check-post and original Form 49 produced by the
consignee are the same. Even the bar-code in both forms is the same.
Therefore, there was no possibility of double use of a single Form no.
49. It is further submitted by the learned counsel that necessary tax
had already been paid, hence, there was no question of evading of any
tax by the appellant. The impugned orders have been passed
mechanically without considering the law laid down by this Court in
the case of Natraj Freight Carriers V/s. Dy. Commissioner,
Commercial Tax (W.P. No.807/2004 decided on 6.12.2022); and
Goyal Delhi Madhya Pradesh Road Line V/s. Commercial Tax
Check Post and others : 2019 SCC OnLine MP 7144. He, therefore,
prayed that this appeal be allowed and the impugned orders be set
aside.
06- On the other hand, Shri Aniket Naik, learned Dy. Advocate
General appearing for the respondents, has argued in support of the
impugned orders by submitting that there are concurrent findings
recorded by the Assessing Authority, Appellate Authority and the
Appellate Board in this matter hence in the absence of any question of
law involved in this appeal same is not liable to be entertained. It is
further submitted by the learned counsel that there is no perversity in
the findings recorded in the impugned orders . It is an admitted
position that the copy of Form 49 produced by the driver of the truck
of the appellant at the check-post was not showing the serial number
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and the entire consignment is identified by the serial number. Later on,
the appellant produced Form 49 in which though the serial number
was there but the addresses in both the forms were filled in a different
manner, therefore, the photocopy of Form 49 produced by the driver
of the truck at the check-post was not a true copy of actual Form 49.
Hence, the Appellate Authority has rightly held that there was an
attempt on the part of the appellant to evade tax and rightly imposed
the penalty. It is further submitted by the learned Dy. Advocate
General that in the case of Goyal Delhi Madhya Pradesh Road Line
the driver of the Truck did not produce Form No. 49 at check post
hence it has been held by the Division Bench of this High Court that it
cannot be held that he was intending to evade tax but in this case, the
driver produced forged form No. 49 hence finding of evasion of tax by
the appellant has been recorded.
We have heard the learned counsel for the parties and perused the
material available in the record.
07- As discussed above, there is no dispute that a copy of Form 49
produced by the driver of the truck at check post was not having a
serial number and later on, in Form 49 produced by the appellant it
was there. Both the Forms have been reproduced by the Appellate
Board in the impugned order dated 19.10.2022. Both the Forms are
reproduced herein in this order also as under :
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It is clear from the above two forms that in the copy of Form 49
produced by the driver of the truck the upper portion where serial
number is printed has been torn off and apart from this, there is a
different pattern of writing address in both the Forms. Therefore, it is
clear that the Form 49 produced by the driver was not the duplicate of
the original Form 49. Hence, the Appellate Authority as well as
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Appellate Board have rightly held that the appellant has failed to
establish that there was no mens rea or no mala fide on their part to
evade tax in respect of transportation of the goods. The Assessing
Authority as well as appellate authorities have rightly held that there
was an attempt to evade the tax by concealing the serial number in
Form 49. We do not find any ground and question of law to interfere
with the impugned orders.
Accordingly, this appeal fails and is hereby dismissed.
[ VIVEK RUSIA ] [ HIRDESH ]
JUDGE. JUDGE.
Alok/-
Digitally signed by ALOK GARGAV
Date: 2023.06.20 17:57:44 +05'30'
