K. Vinod Chandran, CJ. – The petitioner engaged in the manufacture and sale of tyres, tubes and flaps is concerned with a penalty order passed under Section 60(4) (b) read with Section 56(4) (b) of the Bihar Value Added Tax Act, 2005 (hereinafter referred to as ‘the Act’) after detention of a truck carrying goods at the integrated checkpost, Dhobi, Gaya.

2. The petitioner has a mother Warehouse situated at Patna and other branch Warehouses in the nearby State, one of which is situated at Ranchi in the State of Jharkhand. The contention is that by invoice produced at Annexure-1, stock transfer was made to the Warehouse at Ranchi and while the same was being transported in a vehicle as per the lorry receipt produced at Annexure-1/A, the same was detained and checked at the integrated check-post. The driver of the truck produced Annexure-1, 1/A and Annexure-2 SUVIDHA Outgoing Form which had to be uploaded before the transport originated and the same produced on probable checking. The SUVIDHA Form at Annexure-2 had a different invoice number from that shown in Annexure-1. The value and the quantity tallied with the invoice, but the invoice number was wrongly noticed as 002179; which was actually 002172. This was just a clerical mistake is the contention. The detaining authority, however, rejected the contention of the petitioner and imposed penalty, as per the impugned order at the maximum prescribed under Section 60(4) of the Act.

3. The learned Senior Counsel submits that there can be no mens rea found especially when everything tallied but the invoice number, which mistake was also due to a human error which had to be reckoned by the detaining authority. It is pointed out that while transporting goods inter-State, in the present case, between the States of Bihar and Jharkhand, SUVIDHA Forms had to be uploaded before the transportation commenced. While in the portal of the State of Bihar, the SUVIDHA Form at Annexure-2 was uploaded; with a mistake in invoice number, it was correctly done in the portal of the State of Jharkhand as revealed from SUGAM-G form as indicated in Annexure-2/A. It is also pointed out that there is yet another invoice as per Annexure-3 having document number 002179 produced as Annexure-3 which is dated 02.01.2015. The supporting documents of which are produced along with Annexure-3. It is argued that there can be no penalty imposed and in any event, not at the maximum of that prescribed, especially since it has been held in various decisions that insofar as penalty is concerned, the word ‘shall’ used in the provision could, in the peculiar facts and circumstances, be deemed to be ‘may’. The learned senior counsel would also contend that there is no question of tax evasion since the goods were stock transferred and it was not intended for sale within the State of Bihar or for inter-State sale.

4. The learned Government Advocate, on the other hand, would rely on Guljag Industries vs. Commercial Taxes Officer, (2007) 7 SCC 269. It is argued that what comes out from the provision is a penalty for misdemeanor with civil liability and not necessarily one which is attracted only when there is mens rea and the intention is also not merely of deterrence. The learned Government Advocate points out that the invoice now produced with the number 002179 is one which was generated on the next day after the detention had occurred. The detention as is seen from Annexure-4 series was on 02.01.2015 at 01.05 a.m. at the integrated check post, Gaya. Subsequently generated document cannot prove the genuineness of the transport and the wrong invoice number noticed could very well have led to multiple transport being carried out on the basis of the stock transfer invoice, which could really be an inter-State sale. If the vehicle was not detained and not searched, then there could have been further transport carried out based on the very same quantity and value, thus, enabling the present consignment which was detained, to be sold i