Penalty under section 129-Confiscation of goods-Declaration of delivery challan issued under rule 55 not made in rule 138-Validity

Asstt. STO v. Indus Towers Ltd.

Decision:    Against the assessee

Penalty under section 129-Confiscation of goods-Declaration of delivery challan issued under rule 55 not made in rule 138-Validity

Facts:

When a delivery challan is issued under rule 55, it is a mandate under sub-rule (3) of rule 55 that there should be a declaration as specified in rule 138. The fact that there was no such declaration uploaded in the site as an intimation to the Department of the transport of such goods raises a reasonable presumption of attempt to evade tax, against the assessee. If the conditions under the Act and Rules are not complied with, definitely section 129 operates and confiscation would be attracted.

Held:

The respondents are entitled to an adjudication, but they would have to prove that in fact there was a declaration made under rule 138 before the transport commenced. If they do prove that aspect, they would be absolved of the liability; otherwise, they would definitely be required to satisfy the tax and penalty as available under section 129. .-Vide Asstt. STO v. Indus Towers Ltd. (Ker-HC), W. A. No. 371 of 2018, decided on 13-7-2018.