JUDGMENT Arun Tandon, J.
1. Heard Sri Rakesh Ran/an Advocate on behalf of the Assessee and Standing Counsel on behalf of the Department.
2. Penalty proceedings under Section 13-A(4) of the U.P. Trade Tax were initiated against the petitioner in respect of the goods covered by Bill No. 73 dated 2.3.19993 and Bitty No. 1598, which were seized by the Mobile Squad on 4.3.1993. The goods so seized comprise of 10 Cartoons of Oil Engine Parts.
3. The aforesaid proceedings resulted in an order of penalty of Rs. 6800/- being imposed upon the Assessee.
4. Feeling aggrieved by the aforesaid order, the Assessee filed First Appeal under Section 9 of the Trade Tax Act, which was numbered as First Appeal No. 376 of 1996. The Appeal so filed by the Assessee was allowed by the First Appellate Authority vide order dated 18.10.1996 and the matter was remanded to the Assessing Authority with following directions:
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5. In alleged compliance of the order of remand, the Assessing Authority issued notices by registered post to the transporter as well as to the purchaser. Both the aforesaid persons did not respond to the notice so issued. The Assessing Authority thereafter without enforcing their attendance in exercise of power under Rule 75 of the U.P. Trade Tax Rules, proceeded to draw an adverse inference against the assessee and vide order dated 27.1.1997 re-affirmed the penalty levied under the first order dated 20.3.1995.
6. Feeling aggrieved by the said order, the Assessee filed First Appeal under Section 9 of the Trade Tax Act, which was numbered as First Appeal No. 370 of 1997. The appeal so filed by the Assessee was dismissed under an order dated 18.12.2998. The Assessee filed second appeal before the Trade Tax Tribunal, Agra under Section 10 of the Trade Tax Act. The second appeal was numbered as Appeal No. 171 of 1998. The second appeal has also been dismissed under order of the Tribunal dated If June, 1999. Hence the present Trade Tax Revision.
7. On behalf of the Assessee it is contended that the order imposing the penalty on remand as well as orders passed by the appellate authority are vitiated for non-compliance of the directions issued under order of remand dated 18.10.1996. Counsel for the Assesses points out that the respondent authorities were not justified in not enforcing the attendance of the transporter and the purchaser under the provisions of Rule 75 of the Trade Tax Rules before proceeding to draw an adverse inference against the petitioner
8. Standing Counsel on the other than submits that appropriate notice was issued to the transporter and purchaser by registered post and since they did not respond to the notice so issued, the Assessing Authority proceeded to draw an adverse inference against the Assessee. There are other material on record on the basis whereof the penalty imposed can be legally justified. The order passed by the First Appellate Authority as well as Tribunal in the facts of the present case are in accordance with law and therefore the Trade Tax Revision /s deserve to be dismissed.
9. I have heard counsel for the parties and have gone through the records of the writ petition.
10. In the opinion of the Court, once First Appellate Authority has remanded the matter to the Assessing Authority with a certain direction and the order of the First Appellate Authority having not being challenged by the department, the subordinate Assessing Authority is duty bound under law to act in strict adherence to the direction issued under the order of remand. If the transporter and purchaser had not responded to the notice sent by the Assessing Authority, he was under legal obligation to take recourse of Rule 75 of the Trade Tax Rules for enforcing their attendance. Such a recourse have not been adopted.
11. In the opinion of the Court unless and until the Assessing Authority took steps for enforcing the attendance of the transporter and the purchaser, as contemplated by Rule 75, in the facts of the present case he was legally not justified in drawing an adverse inference against the Assessee, nor the order passed on remand can be said to be in strict compliance of the order of remand.
12. In such circumstances, recourse having not been taken to the statutory provision for enforcing the attendance of the transporter and the purchaser, the order passed by the Assessing Authority stands vitiated. The order passed by the First Appellate Authority as well as Second Appellate Authority confirming the order of penalty without appreciating the aforesaid legal aspect of the matter are also rendered illegal.
13. In view of the aforesaid, the present Trade Tax Revision is allowed. The matter is remanded to Assessing Authority to decide the matter afresh as directed under the order of remand dated 18.10.1996. The aforesaid exercise must be completed by the Assessing Authority preferably within four months from the date a certified copy of this order is filed before the Assessing Authority. The Assessee is directed to file a certified copy of this order within three weeks from today before the Assessing Authority.