JUDGMENT Rajes Kumar, J.
1. These five revisions under Section 11 of the U.P. Trade Tax Act, 1948 (hereinafter referred to as "the Act") are directed against the order of the Tribunal dated July 31,1995 relating to the assessment years 1984-85,1985-86,1987-88,1988-89 and 1989-90 under the U.P. Trade Tax Act, 1948.
2. Dealer/opposite party (hereinafter referred to as "the dealer") was carrying on the business of vegetable ghee. It was sold in tin containers. It is claimed that separate price for vegetable ghee and tin containers were charged in the bill. Rate of tax of vegetable ghee was 10 per cent and tax on tin containers was four per cent. In the bill on the value of the tin containers tax at the rate of four per cent was charged and six per cent was further charged towards contingent liability refundable. In the return, dealer had deposited tax at the rate of four per cent only on the tin containers and retained six per cent which was charged towards contingent liability refundable. In the assessment proceeding, it was claimed that there was separate contract for vegetable ghee and tin containers and the price of tin containers was separately charged, therefore, the turnover of tin containers was liable to tax at the rate of four per cent and not at the rate of 10 per cent applicable to the vegetable ghee. The assessing authority, however, has not accepted the plea of the dealer and levied the tax on the value of the tin containers at the rate of 10 per cent which was applicable to the vegetable ghee. The first appeal filed by the dealer was allowed and the Tribunal has affirmed the order of the first appellate authority. Plea of the dealer has also been upheld by this Court in revisions. Thereafter, the assessing authority levied penalty under Section 15A(1)(qq) of the Act on the ground that the dealer had realised tax in excess of amount of tax due. It was held that the dealer realised 10 per cent tax while only four per cent had been deposited and retained six per cent. For the assessment years 1984-85, 1985-86 and 1989-90, the first appellate authority allowed the appeal in part and reduced the penalty. For the assessment years 1987-88 and 1988-89, the first appellate authority allowed the appeal and remanded the matter back to the assessing authority. Against the order of the first appellate authority, the Commissioner of Trade Tax as well as the dealer filed appeals before the Tribunal. The Tribunal by the impugned order rejected all the appeals filed by the Commissioner of Trade Tax and allowed the appeals of the dealer and quashed the penalty levied under Section 15A(1)(qq) of the Act. The Tribunal held that for the assessment year 1981-82, the assessing authority levied tax at the rate of 10 per cent on tin containers which was deleted by the first appellate authority and by the Tribunal. The department filed revision before the honourable High Court which was dismissed on September 12, 1988 and against the said order Special Leave Petition No. 16540 of 1989 was dismissed on April 12, 1990. The Tribunal was of the view that the rate of tax was in dispute which was finally settled on April 12, 1990 when the special leave petition has been finally dismissed by the apex court. The Tribunal further held that the amount has been charged towards contingent liability refundable and not as a tax.
Heard learned Counsel for the parties.
3. Learned Standing Counsel submitted that the aforesaid appeals were fixed for hearing on August 9, 1995 but on applications moved by the dealer for early hearing, the Tribunal fixed the date on July 27, 1995 and on July 27, 1995, since 72 appeals were fixed for hearing, adjournment application was moved on behalf of the State Representative on the ground that the appeal could not be prepared. Said adjournment application has been rejected and the appeal has been heard. Submission of the learned Standing Counsel was that proper opportunity of hearing has not been given. Not much has been said on the merit of the case.
4. I have perused the record. It appears that one Sri R.N. Agarwal was posted as Member Tribunal, Aligarh and normally the Bench was constituted which Sri R.N. Agarwal as one of the member. It appears that in the present cases, either in some of the cases first appeal was decided by Sri R.N. Agarwal as Deputy Commissioner (Appeals) or he has filed the appeal as Deputy Commissioner (Executive) before the Tribunal, therefore, he could not hear the appeals. The application for the preponement was moved on the ground that in the existing Bench, Sri R.N. Agarwal was not member and hence appeals could be heard. The applications were allowed and the date was fixed on July 27, 1995. However, on July 27, 1995 State representative moved adjournment applications which were rejected and detailed order was passed by the Tribunal which is as follows:
File Dekhi, Aise Mukadamay may jab bhi sunwai kay liye atey hai aur sunwai honay lagati hai to vibhag key taraf say bina kisi adhar kay adjournment dey dee jati hai.
Es prarthana patra say pahlay dinank 26.10.94 to A.C. (Assessment) kay na honay par prarthana patra vibhag key taraf say adjourn patra diya gaya.
Es prarthana patra may 25.7.95 ko sambandhit patrawali mil gayee. Eskay bavjood do din may taiyyari nahi key gayee jabki yeh mukadamay Sri R.N. Agrawal say sambandhit hai aur eseeliye aisay mukadamay kay liye specially yeh bench gathit key gayee hai. Lekin aisey mukadamay vibhag karna nahi chahta hai. Yahi nahi vibhag kabhi bhi kisi mukadamay ko tayyar karkay nahi aata hai kyoki rozana ek naya S.R. en bench kay liye bheja jata hai. Asal S.R. Hg Rana ko D.C. (E) Chutti par Ghoshit kartay hai lekin voh chutti par nahokar dusray sarkari karyo mey Vyasta rakha jata hai.
Uprokta pariesthi may aisee prarthana patro mey koi bal nahi hai. Kharij key jati hai.
5. It is true that the adjournment application was moved and rejected, but it is not true that the appeal was decided without hearing the State Representative. The State Representative was present during the course of hearing and was heard. It is true that the preponement of the hearing should be avoided and the adjournment should normally be allowed, but it appears that the Tribunal has preferred to hear the matter in special circumstances, but it is not the case that the State Representative has not been heard. Looking to the nature of the case and the issue involved, there appears to be no substance in the argument of the learned Standing Counsel that the appeal has been decided without giving opportunity of hearing.
6. Facts of the case are not in dispute. Claim of the dealer in the earlier years that turnover of tin containers was liable to tax at the rate of four per cent has not been accepted by the assessing authority and it was taxed at the rate of 10 per cent. Therefore, the issue with regard to rate of tax on tin containers was in dispute and was not settled. It was finally settled when the special leave petition filed by the Commissioner of Trade Tax has been finally dismissed on April 12, 1990 against the order of this Court. The dealer had charged the amount at the rate of six per cent towards contingent liability refundable and not as a tax. It appears that the amount has been charged as security to secure itself in case the tax is levied at the rate of 10 per cent on the tin containers. On the facts of the case, there was a bona fide belief on the part of the dealer in charging six per cent towards contingent liability and thus the levy of penalty under Section 15A(1)(qq) of the Act was not justified.
7. Section 15A(1)(qq) of the Act as it existed at the relevant time reads as follows:
(qq) realises any amount as sales tax or purchase tax, where no sales tax or purchase tax is legally payable or in excess of the amount of tax legally payable under this Act.
Section 15A(1)(qq) of the Act was amended with effect from June 1, 1990 by U.P. Act No. 28 of 1991 which reads as follows:
(qq) realises any amount as sales tax or purchase tax or any amount in lieu of sales or purchase tax by giving in it a different name or colour in contravention of the provisions of Sub-section (2) of Section 8A.
8. In the present case, unamended Section 15A(1)(qq) of the Act is applicable. It is applicable only in a situation when any amount is realised as sales tax or purchase tax. If the amount is not realised as sales tax or purchase tax and realised in any other name then Section 15A(1)(qq) of the Act as it stood at the relevant time is not applicable. Section 15A(1)(qq) of the Act came up for consideration before this Court in the case of Commissioner of Sales Tax v. Mool Chand Shyam Lal, Belanganj, Agra . This Court held that Section 15A(1)(qq) of the Act is applicable only if the amount is charged as sales tax or purchase tax and not in any other name. Against the said order, special leave petition has been dismissed by the decision of the apex court in the case of Commissioner of Sales Tax v. Mool Chand Shyam Lal, Belanganj, Agra . In view of the decision of the apex court, penalty is not leviable because six per cent amount was not charged as sales tax but has been charged as contingent liability.
9. For the reasons stated above, I do not find any error in the order of the Tribunal which is hereby upheld. In the result, all the five revisions fail and are accordingly, dismissed.