JUDGMENT : VIPIN SANGHI, J. 1. Present Commercial Tax Revision No. 26 of 2013 has been preferred by the revisionist-assessee under Section 55 (1) of the Uttarakhand Value Added Tax, 2005 in relation to the penalty imposed upon it, for the Assessment Year 2008-09, by the Deputy Commissioner (Assessment)-I, Commercial Tax, Haridwar, which was confirmed by the Commercial Tax Tribunal, Dehradun, vide its order dated 27.07.2013. 2. The case of the revisionist is that it was carrying on the business of sale and purchase of Gutkha in the relevant assessment year. The revisionist imported 120 bags of Gutkha from its manufacturer, Som Products, Delhi through Truck No. HR-38C-4475. The goods were accompanied with GR of Khanna Carrying Corporation, i.e. the transporter of the revisionist, for 120 bags of Gutkha valued Rs. 16,38,324/-. The goods were accompanied with sale invoice Nos. 863, 864 and 865. The driver was also having transit pass issued by Mohan Nagar Check Post, authorising the transporter to cross border of the State of U.P. and enter into the State of Uttarakhand. The driver was also having discharge certificate issued by exit check post on the border of the State of U.P. The vehicle carrying the aforesaid goods was stopped at Kuwan Hedi, Narsan Check Post of the State of Uttarakhand where the driver provided all the documents possessed by him. Unfortunately, declaration Form 16 was not accompanied with the goods, as by mistake, it remained with the transporter and could not be handed over to the driver along with other documents namely bilty, sale invoice etc. While verifying the documents at Kuwan Hedi, Narsan Check Post in the State of Uttarkhand, the said deficiency in the documents, for the first time, came to the fore. Since Form 16 did not accompany with the goods, the Assistant Commissioner, Commercial Tax, issued a show cause notice to the Driver of the vehicle to show cause as to why, the 120 bags of the Gutkha being transported against bill Nos. 863, 864, 865, be not seized. The show cause notice was made returnable by 25.08.2008. The revisionist-assessee submitted its reply to the show cause notice, disclosing that it is a registered dealer and it was having agency of Gutkha of the manufacturer Som Products, New Delhi. The revisionist-assessee also stated that it was regularly importing Gutkha against Form 16. 863, 864, 865, be not seized. The show cause notice was made returnable by 25.08.2008. The revisionist-assessee submitted its reply to the show cause notice, disclosing that it is a registered dealer and it was having agency of Gutkha of the manufacturer Som Products, New Delhi. The revisionist-assessee also stated that it was regularly importing Gutkha against Form 16. The sale is covered by Form C of the Central Sales Tax Act, and the revisionist is filing return every month. From April, 2008 to July, 2008 due tax was deposited by the revisionist to the Assessing Authority. The revisionist also stated that the goods in question, were being transported against bill Nos. 863, 864 and 865 by Khanna Carrying Corporation but due to oversight of the transporter, Form 16 bearing no. UK-VAT-A 2007 No. 1807258 was not handed over by the transporter to the driver. Along with reply to the show cause notice, the revisionist also submitted Form 16 No. 1807258 in original issued by Commercial Tax Officer on 18.07.2008 before the Assessing Authority, and requested that since the said Forms are being filed, all the goods may be released without any security. However, the Assessing Authority passed an order of seizure, demanding Rs. 6,62,400/- as a security for releasing the goods. Finding itself in the aforesaid position, the revisionist had no option but to get the goods released, as they were perishable items. The revisionist further states that, subsequently, Deputy Commissioner (Assessment)-I, Commercial Tax, Haridwar vide its order dated Nil converted the whole amount of security into penalty, adjusting the security amount. The said order, issued under Section 58 (XIX) of the said Act, was served upon the revisionist on 04.06.2009. 3. Aggrieved by the order passed by the Assessing Authority, the revisionist preferred a First Appeal bearing No. 891 of 2009 before the Joint Commissioner (Appeal), Commercial Tax, Dehradun. The said appeal was partly allowed by reducing the penalty from 40% to 20%. Consequently, the penalty was reduced from Rs. 6,62,400 to Rs. 3,31,200/-. While passing the said order, the Appellate Authority observed that the original and duplicate copy of Form 16, produced by the revisionist, contained signatures of different persons, and the trip sheet did not contain the particulars of goods covered by the aforesaid three bills. Consequently, the penalty was reduced from Rs. 6,62,400 to Rs. 3,31,200/-. While passing the said order, the Appellate Authority observed that the original and duplicate copy of Form 16, produced by the revisionist, contained signatures of different persons, and the trip sheet did not contain the particulars of goods covered by the aforesaid three bills. He also observed that upon investigation, it was found that driver did not state that he had forgotten to take the Form 16 from the transporter. 4. The revisionist then preferred a Second Appeal under Section 53 of the VAT Act, assailing the order passed by first Appellate Authority in Appeal No. 891 of 2008 dated 27.10.2010. The said appeal bearing No. 11/2011 for the Assessment Year 2008-09 under Section 58 (XIX) was dismissed by the Commercial Tax Tribunal, Uttarakhand, Dehradun Bench, Dehradun vide judgment dated 27.07.2013, which is impugned in the present revision. The operative part of the impugned order reads as follows: “6. In these appeals, this fact is not under dispute that the goods which were seized by the check post authority were not found covered with any valid import declaration form XVI at the time of verification of the goods, hence it is evidence that the goods in question were being imported in contravention of the provisions of the Act and Rules made there under. The declaration in form XVI which was produced at a later stage was also not found in order, because on the original and second foil of the declaration, the signature of different persons were observed. The disputed goods were also not found entered in the trip-sheet produced before the check post authority. The learned J.C. (A) after elaborate discussion on these issues and after incorporating the proper reasoning in the impugned judgment and order dated 27.10.2010 has fixed up the penalty amount. We feel that under the facts and circumstances involved in these cases, the reduction made in the penalty amount is totally justified. Consequently, we do not find any reason to differ from the findings recorded by the learned J.C. (A) in the impugned judgment and order dated 27.10.2010 and hence the same is liable to be confirmed.” 5. The submission of the learned Senior Counsel for the revisionist is that revisionist had produced Form 16 in respect of the goods in question, along with its reply to the show cause notice. The submission of the learned Senior Counsel for the revisionist is that revisionist had produced Form 16 in respect of the goods in question, along with its reply to the show cause notice. In this regard, he has drawn our attention to the communication dated 19.08.2008 addressed by Khanna Carrying Corporation to the Assistant Commissioner, Commercial Tax. He further submits that this is the first instance of lapse on the part of the revisionist, and in this background, the revisionist could not be said to have deliberately failed to produce Form 16 at the relevant time with a view to evade payment of tax. 6. He has drawn our attention to Section 48(8) of the Act, which deals with the aspect of levy of penalty. The same requires to grant opportunity to the owner, or a person duly authorised by such owner, or the driver or person-in-charge of a vehicle or of goods in question, of being heard and it is only upon satisfaction being recorded that the goods were imported, or abetted to import in contravention with the said provisions “in an attempt to evade assessment or payment of tax due or likely to be due under this Act” that an order of imposing penalty, not exceeding forty percent of the value of such goods involved, or three times the tax leviable on such goods, under any of provisions of this Act, whichever is higher, could be levied. 7. Learned Senior Counsel for the revisionist submits that in the factual background of the case, there was no basis to conclude that there was an attempt to evade the assessment or payment of tax due, or likely to be due under the Act. In support of these submissions, he has placed reliance on the three-Judge Bench Judgment of the Supreme Court in the case of State of Rajasthan and Another vs. M/s D.P. Metals, (2002) 1 SCC 279 . The Supreme Court was dealing with pari materia provisions under the Rajasthan Sales Tax Act, namely Section 78(5), which provides for imposition of penalty on person in charge of goods, for noncompliance of Section 78(2)(a) of the said Act, or for submission of false or forged documents or declaration. While upholding the constitutionality of the said provisions, the Supreme Court in paragraph 32 of the judgment observed as under: “32. While upholding the constitutionality of the said provisions, the Supreme Court in paragraph 32 of the judgment observed as under: “32. Such submission of false or forged documents or declaration at the check-post or even thereafter can safely be presumed to have been motivated by desire to mislead the authorities. Hiding the truth and tendering falsehood would per se show existence of mens rea, even if required. Similarly where, despite opportunity having been granted under Section 78(5) if the requisite documents referred to in clause (a) of sub-section (2) are not produced, even though the same should exist, would clearly prove the guilty intent. It is not possible to agree with the counsel for the respondents that breach referred to in Section 78(5) can be regarded as technical or venial. Once the ingredients of Section 78(5) are established, after giving a hearing and complying with the principles of natural justice, there is no discretion not to levy or levy lesser amount of penalty. If by mistake some of the documents are not readily available at the time of checking, principles of natural justice may require some opportunity being given to produce the same. This provision cannot be read as to imply that the penalty of 30% is the maximum and lesser penalty can be levied. The legislature thought it fit to specify a fixed rate of penalty and not give any discretion in lowering the rate of penalty. The penalty so fixed is meant to be a deterrent and we do not see anything wrong in this. The quantum of penalty under the circumstances enumerated in Section 78(5) cannot, in our opinion, be regarded as illegal. The legislature in its wisdom has thought it appropriate to fix it at 30% of the value of goods and it had the competence to so fix. As held by this Court in Rai Ramakrishna and Others vs. State of Bihar, (1964) 1 SCR 897 , at SCR p. 910: “The objects to be taxed so long as they happen to be within the legislative competence of the legislature can be taxed by the legislature according to the exigencies of its needs, because there can be no doubt that the State is entitled to raise revenue by taxation. The quantum of tax levied by the taxing statute, the conditions subject to which it is levied, the manner in which it is sought to be recovered, are all matters within the competence of the legislature, and in dealing with the contention raised by a citizen that the taxing statute contravenes Article 19, courts would naturally be circumspect and cautious.” As such there cannot, in the present case, be any valid challenge to the rate of penalty provided for in Section 78(5) of the Act.” (Emphasis supplied) 8. Learned Senior Counsel for the revisionist submits that mens rea is, therefore, an essential ingredient to attract the imposition of penalty, and mere lapse of this kind, which has occurred in the present case, was not sufficient to presume the intention to evade tax on the part of the revisionist-assessee. 9. He also places reliance on the judgment of learned Single Judge namely Hon’ble Mr. Justice Pankaj Mithal (as his Lordship then was) in the case of Castrol India Limited vs. Commissioner, Commercial Tax, 2012 (49) NTN 202. In that case as well, the declaration Forms were produced subsequently, along with the reply to the show cause notice. The learned Single Judge observed that the object of issuance of show cause notice is to give to the party concerned, not only an opportunity to submit an explanation as to why the security may not be demanded, but also to explain why the goods may not be seized. Therefore, if in response to such a show cause notice, the party produces the necessary documents so as to remove the discrepancy, if any, found at the time of checking, the authorities are legally bound to consider the same before ordering for seizure of the goods. 10. Learned Senior Counsel for the revisionist submits that, in fact, the seizure of the goods itself was improper in the light of aforesaid judgments and, consequently, the imposition of penalty was certainly not called for. 11. He further places reliance on Section 65 of the Act, which raises a statutory but rebuttable presumption that, where any taxable goods for the purpose of business, are being imported without a form of declaration prescribed under section 48, unless otherwise proved, after furnishing proper and sufficient evidence, it shall be presumed that such goods are being imported with a view to evade payment of tax. 12. 12. On the other hand, learned Brief Holder for the State submits that the declared value of the goods being transported was about Rs. 5,00,000/- whereas the actual value of goods was to the tune of Rs. 16.38 lakhs. He also places reliance upon the factual finding recorded by Deputy Commissioner (Commercial Tax) in the order imposing penalty under Section 58(XIX), wherein it is recorded that the declaration form produced by the assessee did not bear the seal and the original and duplicate copies of the declaration forms also bore different signatures of the seller. 13. Learned Brief Holder for the State also refers to the seizure order dated 17.08.2008, which recorded that the value of the goods covered by Bill Nos. 863, 864 and 865 was disclosed as Rs. 5,46,108/- whereas the value of the entire consignment was disclosed as Rs. 16,38,324/-. He also refers to the impugned order passed by the Tribunal, particularly paragraph 6, which has already been extracted herein above. 14. He also places reliance upon the decision of the Supreme Court in the case of Guljag Industries vs. Commercial Taxes Officer, (2007) 7 SCC 269 . Relying upon paragraph 32 thereof, he would submit that in this subsequent decision, the Supreme Court had noticed the earlier decision in the case of D.P. Metals (supra) and held that for imposition of penalty mens rea is not a necessary ingredient. The Supreme Court had held that the object of the law in respect of imposition of penalty is to remedy the loss of revenue and not to punish the offender and the penalty thereunder is a civil liability. Thus, transport of goods without the relevant declaration forms would automatically attract levy of penalty for breach. 15. He also refers to the order passed by the First Appellate Authority, pointing out that the same finding of fact that the original and the duplicate copy of the Form 16 bore signatures of different persons, was recorded by it. 16. In rejoinder, learned Senior Counsel for the revisionist submits that the grounds for imposition of penalty cannot be expanded beyond the allegations levelled in the show cause notice. In this regard, he has drawn our attention to the show cause notice dated 17.08.2008. The limited ground taken in the show cause notice was the absence of the declaration form in respect of goods covered by bill Nos. In this regard, he has drawn our attention to the show cause notice dated 17.08.2008. The limited ground taken in the show cause notice was the absence of the declaration form in respect of goods covered by bill Nos. 863, 864 and 865. The show cause notice does not make any allegation with regard to the goods in question, not being entered in the trip sheet. Therefore, this ground could not be cited as the justification for imposition of penalty. In any event, he submits that the trip sheet has to be filled by the transporter and the failure of the transporter, not to fill the same, even if true, would not justify the imposition of penalty on the revisionist-assessee. 17. The learned Senior Counsel has also drawn our attention to Form 16, which was subsequently supplied by the revisionist along with the reply to the show cause notice. In this regard, a categorical averment has been made in the revision petition to the effect that there is no discrepancy in the signatures found in the original, and copy of Form 16. He would submit that there is no basis to claim that the signatures thereon are different in the original and the duplicate copy. He further submits that the seal of the consignee/purchaser is also affixed on both - the original and the duplicate copy, and both the papers also bore signatures of its proprietor Shri Ram Krishna, on behalf of M/s Brij Lal and sons. He further submits that the signatures of the seller in Column 8 in both the copies of Form 16 are same. He has also referred to the Circular issued on 30.04.1988 under the U.P. Trade Tax Act, which states that the Sales Tax check post would not detain the consignment inter alia for the reason that the seller’s seal is not affixed on the form. He submits that the said circular continues to be an operation by virtue of Section 80 of the Act. 18. We have considered the rival submissions advanced before us, examined the record, as also the decisions cited by learned counsels on either side. 19. The submission of Mr. Maulekhi, learned counsel for the State, that the value of the goods being transported was declared to be only Rs. 5 lakhs, whereas the actual valuation of the goods was to the tune of Rs. 19. The submission of Mr. Maulekhi, learned counsel for the State, that the value of the goods being transported was declared to be only Rs. 5 lakhs, whereas the actual valuation of the goods was to the tune of Rs. 16.38 lakhs, is not borne out from the records. In fact, the order under Section 58(XIX), passed by the Deputy Commissioner itself records that the value of the consignment was declared at Rs. 16,38,324/-. The submission of Mr. Maulekhi founded upon the factual finding recorded by the Deputy Commissioner (Commercial Tax) in the order imposing penalty under Section 58(XIX) to the effect that declaration form produced by the revisionist-assessee did not bear the seal, and that the original and duplicate copies of the declaration form also bears different signatures of the seller, also does not appear to be correct. We may observe that the same finding was also returned by the First Appellate Authority. We are conscious of the fact that in these revision proceedings, it is not for this Court to re-appreciate the evidence, and normally interfere with concurrent findings of fact. However, there are exceptions to the said rule. The revisionist has placed on record the declaration in Form 16 along with the present revision petition, and has made a categorical averment in the revision petition in Para 19, that there is no discrepancy in the original and the copy of the Form 16 bearing No. 1807258. A copy of the same is annexed as Annexure -7 to the revision petition. 20. We have carefully seen said Form 16 declaration for ourselves, and there is absolutely nothing to show that there is any discrepancy in the original and the duplicate copy of the Form 16 declaration, placed on record. The said declaration forms bear the same signature of Sri Ram Krishna for Brij Lal and sons, the revisionist. Even the signatures of the seller appear to be the same to the naked eye. Both the copies also bear the seal of Brij Lal and sons, as also the official seal. Counsel for the respondent has also not been able to point out any difference in the two copies of the form. 21. Aforesaid being the position, we cannot ignore and shut our eyes to what is evident to us from the record. Both the copies also bear the seal of Brij Lal and sons, as also the official seal. Counsel for the respondent has also not been able to point out any difference in the two copies of the form. 21. Aforesaid being the position, we cannot ignore and shut our eyes to what is evident to us from the record. So far as the reliance placed by learned counsel for the respondent on Guljag Industries (supra) is concerned, we find that D.P. Metals (supra) is a decision of three Hon’ble Judges of the Supreme Court, as opposed to the decision in Guljag Industries (supra), which is a decision of two Hon’ble Judges. We are bound to follow the larger Bench decision. From reading of the said decision it appears that mens rea is essential to attract the imposition of penalty. In a case where the assessee fails to respond to the show cause notice, an inference on mens rea to evade the tax may be drawn. In the light of the observations made in D.P. Metals (supra), such an inference would obviously be drawn where the assessee resorts to hiding the truth and tendering falsehood. However, a mistake which leads to non-production of the declaration form at the time of checking does not necessarily lead to exhibition of the intention to evade payment of tax. It is for this reason that grant of opportunity to respond to the show cause notice and produce the documents, is envisaged under Section 48(8) of the Act. If the submission of learned counsel for the respondent is accepted, it would mean, that in every case of failure to produce the declaration form at the time of checking, even when the said failure is validly explained, would attract imposition of penalty. However, that does not appear to be the scheme of the Act. 22. We find merit in the submission of learned Senior Counsel for the revisionist that since the aspect of the trip sheet not disclosing goods covered by the three bills in question, namely, bill Nos. 863, 864 and 865 was not mentioned in the show cause notice, the same cannot be made basis for imposing penalty. 22. We find merit in the submission of learned Senior Counsel for the revisionist that since the aspect of the trip sheet not disclosing goods covered by the three bills in question, namely, bill Nos. 863, 864 and 865 was not mentioned in the show cause notice, the same cannot be made basis for imposing penalty. In any event, the trip sheet is drawn by the transporter, and not by the assessee and failure on the part of the transporter in this regard cannot visit the assessee with the consequence of imposition of penalty. Considering the fact that this was a first such instance, as also the fact that the revisionist had produced the declaration from in Form 16 without any delay along with its reply to the show cause notice, in our view, the revisionist had rebutted the statutory presumption raised by Section 65 of the Act. 23. We, therefore, set aside the impugned judgment passed by the Commercial Tax Tribunal, Uttarakhand, Dehradun Bench, Dehradun, in Second Appeal No. 11/2011, for the Assessment Year 2008-09, under Section 58(XIX) dated 27.07.2013, as it is founded upon patently erroneous findings of fact. We further hold that the revisionist is not liable to be subjected to any penalty. 24. In the aforesaid factual background, revision petition stands allowed, in the aforesaid terms.