MUKESH KUMAR Vs. STATE OF HARYANA

JUDGEMENT

(1.) During the course of roadside checking by the Excise and Taxation Officer (Enforcement), a truck carrying scrap was checked. The in-charge of the goods was asked to produce the documents in respect of the goods loaded in the truck. Driver of the truck produced one gate pass of M/s. Continental Construction Ltd. , 14/2, Miles Stone Mathura Road, Faridabad, dated March 1, 1989 in which the name of the party was mentioned as Jagdish and vehicle number was also there. In the description, it was mentioned "allowed to go HRP 9547 for weighment". No other document was produced by the driver. Driver, however, submitted that documents were being prepared by the selling dealer and he went to collect the same but returned back without any documents. The officer then deputed a Taxation Inspector for ascertaining this position of the documents but he too returned back and told the Excise and Taxation Officer (Enforcement) that no documents have been prepared. In the meantime, the purchaser of the goods one Jagdish Lal also came without any documents. Excise and Taxation Officer after serving notice on the driver of the vehicle imposed a penalty of Rs. 15,000 on him under section 37 (6) of the Haryana General Sales Tax Act, 1973 (hereinafter referred to as "the Act" ). Neither any notice was issued nor any penalty was imposed on the owner of the goods.

(2.) Assessee challenged the order of penalty in appeal before the first appellate authority. The order of the assessing Authority was upheld by the appellate authority and the appeal was rejected. Second appeal before the Tribunal met with the same fate. Petition filed under section 42 (1) of the Act, for referring certain questions of law arising out of the order of the Tribunal was declined by the Tribunal as it was found that no referable question of law arose from the order of the Tribunal. Assessee, thereafter filed a petition under section 42 (2) of the Act seeking a mandamus to the Tribunal to refer the questions of law arising out of the order of the Tribunal. This Court vide its order dated May 7, 1991 directed the Tribunal to refer the following questions of law said to be arising out of the order of the Tribunal to this Court for its opinion along with the statement of the case : 1. Whether in the facts and circumstances of the case, penalty under section 37 (6) of the Haryana General Sales Tax Act, 1973, is leviable ? 2. Whether penalty under section 37 (6) of the Act is leviable on the driver or person in-charge of the goods carriers when the names of the parties, i. e. , selling and purchasing dealers are evident from the documents produced at the first instance ?

(3.) Whether penalty under section 37 (6) of the Act is imposable merely because no other documents except the gate pass was produced without making any enquiry or establishing that there was an intention to evade tax under this Act ?