JUDGMENT
Om Prakash, J.
1. This is a revision for the assessment year 1982-83 against the Tribunal’s order dated 19th February, 1986 upholding a penalty of Rs. 6,275 imposed by the assessing officer under Section 15-A(1)(o) read with Section 28-A of the U. P. Sales Tax Act, 1948. The assessee imported certain goods through truck No. MTS 6980 from outside the State on 4th April, 1982. The truck was intercepted at Chaukhata check post, Allahabad. The goods were seized as they were imported without the documents as prescribed in Sub-rule (4) of Rule 83 of the U. P. Sales Tax Rules, 1948. Only a trip sheet and the way bills were shown at the check post.
2. The assessing officer then caused a notice dated 6th May, 1982 (page 20 of the paper book) to be served on the assessee as to why the penalty should not be levied, as the goods were imported from Madhya Pradesh without declaration in form XXXI. The assessee explained that the transporter left with the goods without waiting for the declaration form XXXI and therefore, the goods were transported without the declaration. The explanation did not satisfy the assessing officer. He, therefore, levied the penalty. The Assistant Commissioner (Judicial), Allahabad Range and the Sales Tax Tribunal both upheld the penalty order and held that the assessee imported the goods without necessary documents with an intention to evade the tax.
3. Aggrieved, the assessee has come up in the revision. I have heard learned counsel for the assessee and learned Standing Counsel. Learned counsel for the assessee relying on Jain Shudh Vanaspati Limited, Ghaziabad v. State of U.P. 1983 UPTC 198, urged that before levying penalty two requirements should be satisfied by the assessing officer :
1. that the goods were imported without the documents prescribed under Sub-rule (4) of Rule 83 of the U. P. Sales Tax Rules; and
2. that such import was done without the documents with an intention to evade the tax.
4. The argument is that the penalty for importing the goods without the documents is not automatic and the assessing officer has to prove simultaneously that the intention was to evade tax and unless such intention is proved, no penalty could be levied. Another argument is that at the check post the trip sheet and the way bills were shown and both these documents contained all the details which would have been mentioned in the declaration form XXXI. It is, therefore, argued that though all the details were available by way of the trip sheet and the way bill, mere absence of the declaration form XXXI will not be taken a factor adverse to the assessee.
5. Section 15-A(1)(o) of the Act states that if the assessing authority is satisfied that any dealer or other person imports or transports any goods in contravention of the provisions of Section 28-A of the U. P. Sales Tax Act, it may, after such inquiry, if any, as it may deem necessary, direct that such dealer shall pay by way of penalty, in addition to the tax, if any, payable by him a sum not exceeding forty per cent of the value of the goods involved. Section 28-A of the U. P. Sales Tax Act, so far as material, states that any person who intends to bring, import or otherwise receive, into the State from any place without the State, any goods liable to tax under this Act and in such quantity or measure or of such value as exceeds the quantity or measure or value stated in Clauses (a) and (b) and the importer shall furnish to the consignor the declaration in the prescribed form in duplicate duly filled in and signed by him and the driver or any other person-in-charge of any vehicle carrying any such goods, shall carry with him such copies of declaration duly verified by the consignor in the prescribed manner together with such other documents as may be prescribed, and shall before crossing any check post or barrier established under Section 28-A of the Act, deliver one copy of such declaration to the officer-in-charge of such check post or barrier and the other copy of the declaration and the remaining documents along with the goods to the importer or his agent. So Sub-section (2) of Section 28-A of the Act enjoined upon the assessee to furnish the declaration in form XXXI along with other documents as prescribed under Sub-rule (4) of Rule 83 of the Rules, at the check post. Admittedly, no declaration in form XXXI was given to the truck driver nor was it sent to the consignor by the assessee. The argument is that the trip sheet gives the complete details of the goods and from the trip sheet coupled with the way bills, the entire details of the goods imported were available in these documents and they having been shown at the check post, no legitimate inference could be drawn that the goods were imported with an intention to evade the tax. The argument seems to proceed on the footing that if there were an intention to evade the tax, then the assessee would not have permitted the driver to show the trip sheet and way bill at the check post. I am not persuaded by this argument of the assessee. Section 28-A of the Act clearly enjoins upon a dealer importing goods from outside to transport the goods with the declaration in form XXXI, cash memo, proper bills, challans and trip sheet. The section does not say that production of any of the documents or some such documents will comply with the requirements of Section 28-A of the Act. Absence of the declaration in form XXXI, cash memo, proper bills and challans clearly show that the goods were imported in contravention of the provisions of Section 28-A of the Act.
6. The only question for consideration is as to what can be the possible intention of such contravention. I quite agree with learned counsel for the assessee that the penalty under Section 15-A(1)(o), read with Section 28-A of the Act, could not be automatically levied simply because the documents prescribed under Sub-rule (4) of Rule 83 of the Rules were not shown at the check post. Before levying penalty, a show cause notice has to be issued to a dealer and in reply if sufficient cause is shown for the absence of the documents, then no penalty would be levied. In this case no cause was shown by the assessee for having imported the goods without the declaration in form XXXI, cash memo, proper bills and challans. So this is not the case of levying the penalty automatically in the absence of some of the documents.
7. The question is whether from the facts and circumstances of the case an inference can be drawn that the intention was to evade the tax behind the contravention of the provisions of Section 28-A of the Act. No inference except the one that the intention was to evade the tax behind the contravention of Section 28-A of the Act can be drawn in this case. Why form XXXI was not sent to the consignor ? This question remains absolutely without any explanation. The goods were not accompanied with proper cash memo, bills and challans. So the absence of declaration and the other documents clearly leads to an unmistaken inference that the assessee acted with a design and the goods were imported without proper documents simply with a view to evade the tax.
8. For the reasons, the order of the Tribunal is upheld. The revision fails and is dismissed. No order as to costs.