JUDGMENT Prakash Krishna, J.
1. This revision is at the instance of Commissioner of Sales Tax under Section 11 of the U.P. Trade Tax Act, 1948 against the order dated May 16, 1994 passed by the Trade Tax Tribunal in Second Appeal No. 132 of 1994 for the assessment year 1991-92. The Tribunal by the impugned order has set aside the penalty proceeding under Section 10A of the Central Sales Tax Act, 1956 (hereinafter referred to as "the Act").
2. The dealer-opposite party carried on the business of manu facture and sale of M.S. angles and bars, etc. It has obtained regis tration for the assessment year 1991-92 under Section 7(2) of the Act. The assessing authority initiated penalty proceeding under Section 10A of the Act on the ground of misuse of form C. The case of the depart ment is that the dealer purchased "electronic weigh bridge" with P.C. computer system with keyboard and monitor by unauthorisedly issuing forms C Nos. 309775 and 379774. The dealer was not authorised to purchase these two items at the concessional rate of tax against form C. In reply to the show cause notice the stand of the dealer was that there is no misuse of form C and the aforesaid goods were purchased by issuing form C, as the dealer was authorised to purchase machinery against form C. The dealer treated these items covered under "machinery" as mentioned in his registration certificate.
3. The assessing authority levied penalty to the extent of Rs. 18,800 and held that the aforesaid items were not covered by the registration certificate and hence there was misuse of form C. The said order was confirmed by the appellate authority. The Tribunal in second appeal has set aside the entire penalty order on the ground that the assessee has not concealed purchase of the goods in question and there is no evidence on record that the appellant has tried to evade tax liability. This order of the Tribunal is under challenge in the present revision.
4. Heard learned counsel for the parties and perused the record.
5. The Tribunal has set aside the penalty proceeding and approached the matter with wrong angle. It was of the opinion that since the purchase of electronic weigh bridge has been shown in the books of account, therefore the assessee has issued form C under bona fide belief that electronic weigh bridge is covered under the entry "rolling mill machinery" meant for the use in the manufacture of goods by his unit. It then proceeded that there is no evidence on record that the electronic weigh bridge is being used for weighing the vehicle of public as "Dharmkanta" and the weigh bridge has been installed in the premises of the assessee and is being used in the business of the unit weighing the raw material and the finished goods. In that view of the matter the Tribunal treated the electronic weigh bridge in question and held it as part of the machinery used in the manufacture of the goods by the appellant. The approach of the Tribunal cannot be approved.
6. Under Section 8(3) of the Act the registered dealer and the Government can purchase goods at concessional rate, (i) the sale must be in the course of inter-State trade and commerce to the reg istered dealer under the Central Sales Tax Act, (ii) the sale to Gov ernment, (iii) any goods or class of goods specified in the registration certificate issued under Section 7 of the Act, (iv) the goods may be for re-sale, or (v) intended for use in manufacture or processing of goods for sale, or (vi) in mining or (vii) in generation or distribution of electricity or any other form of power, (viii) container or packing material enumerated in the registration certificate, (ix) packing material for packing the material, (x) sale to be effected by registered or unregistered dealer and such sale must be to a registered dealer under the Central Sales Tax Act or to the Government (a) State Gov ernment or (b) the Central Government.
7. In the present case registration was granted to the dealer to purchase the goods in inter-State, intended for use in the manu facture or processing of goods for sale. Therefore it was incumbent upon the Tribunal to have recorded definite finding as to whether the "electronic weigh bridge" was used in the manufacture of goods. The assessing authority as well as the appellate authority have held that electronic weigh bridge purchased by the dealer was not used and is not covered within the expression "in the manufacture or processing of the goods for sale". They have placed reliance upon the judgment of Supreme Court in J.K. Cotton Spinning and Weaving Mills Co. Ltd. v. Sales Tax Officer . The Supreme Court in the aforesaid case has interpreted the words "in the manufacture of goods" include, all process, which are directly related to the actual production. The goods intended as for use in the manufacture of goods are expressly made admissible for specification, it has been held that there is no warrant for limiting the meaning of the expression "in the manufacture of goods" to the process or production of goods only. But it has also been held that the building material including lime and cement not required in the manufacture of tiles for sale cannot, however, be regarded within the meaning of rule 13, as raw material in the manufacture of processing of goods or even as plant, electrical equipments not directly connected with the process of manufacture, would not be under the aforesaid expression. Office equipment, such as fan, cooler, air-conditioning unit, would not be admissible to special rate under Section 8(1) of the Act. The Tribunal has failed to examine this point in depth. The point has been dealt with before the Tribunal in cursory manner. The Tribunal being the last fact finding court, is required to record definite finding looking to the nature of business and manufacturing activity of the assessee as to whether "electronic weigh bridge" is covered with the expression "in the manufacture of goods".
8. Learned counsel for the asses see Sri Kunwar Saxena has placed reliance upon the judgment of this Court given in the case of Ravi Engineering Co. v. Commissioner of Sales Tax 1979 UPTC 11. Undoubtedly in the aforesaid case the electronic weigh bridge has been held to be as machine. What I find from the Tribunal's order that in the registration certificate the entry appears to be rolling mill machinery. The other two authorities have not mentioned the exact items or description of the machinery as mentioned in the registration certificate. However, if in the registration certificate rolling machinery is entered into, it has to be examined whether electronic weigh bridge would be included within the aforesaid expression or not. None of the authorities below have mentioned in their order the specific items mentioned in the registration certificate. It is desirable that in such type of cases the specific: items as mentioned in the registration certificate should be reproduced in the order for the purposes of clarity. I may add that in electronic weigh machine, the process of getting loading is different from the simple weigh bridge. The weight is directly displayed on the screen in electronic weigh machine without putting actual balancing weight on the other side of pan. Since the goods to be weighed is to be put on platform/pan, a force gets applied, which means it is a machinery in common parlance. The basic principle of both kind of weighing machine is the same. The only difference is in getting final result of process of taking weight. Nonetheless electronic weighing machine is basically machine plus something more. The Full Bench decision of our Court in the case of Engineering Traders v. State of U.P. [1973] 31 STC 456 : 1973 UPTC 91 has held that machinery in the generic sense would include all appliances and instruments whereby energy of force is transmitted and transformed from one point to another. The Tribunal is required to examine the matter in the light of actual expression used with regard to machinery. in the registration certificate of the dealer and has to record a finding in the light of Section 8(3) of the Act with respect to electronic weighing machine.
9. Now the question remains as to whether another item, namely, P.C. computer system with key board and monitor purchased by the dealer is covered by the expression "machinery" or not. This point will not detain us longer. The first two authorities have held that P.C. computer system with key board and monitor is not machinery and is not covered by the registration certificate of the dealer and thus the dealer has unauthorisedly issued form C for the purchase of these items and it is the case of misuse of form C and the dealer is liable to pay penalty. The Tribunal without reversing these findings has held on all the issues that mens rea is one of the essential ingredients to impose penalty under Section 10A of the Act and the dealer has not issued form C with guilty conscious for the purposes to evade tax or to cause loss of revenue to the department. The order of the Tribunal is not at all satisfactory. The Tribunal has lost sight of the fact that the dealer has by issuing form C availed concessional rate of tax on the purchase of P.C. computer system with keyboard and monitor. This item is indisputably not mentioned in the registration certificate. The purchase of item against form C, which is not mentioned in the registration certificate, will lead a conclusion that the purchase was with mala fide intention. No person can bona fidely entertain the belief while purchasing the goods not mentioned in the registration certificate that he has authorised to purchase it at concessional rate of tax by issuing form C. Learned counsel for the dealer could not justify the finding of the Tribunal on this issue. By no stretch of imagination it can be held that action of the dealer was bona fide. The Tribunal was very much obsessed with the view that since the dealer has disclosed the purchase in the books of account and issued genuine C form the penalty cannot be levied. This approach of the Tribunal if accepted then in every case the dealer is entitled to purchase items even though not mentioned in the registration certificate at the concessional rate of tax and will reduce the mention of goods in the registration certificate a mere formality which cannot be the intention of law. It will nullify Section 7(2) of the Act. Therefore, I have no option but to sustain the order of penalty levied on the purchase of P.C. computer system with keyboard and monitor. Learned counsel for the assessee could not show me anything to hold that this item is covered under "machinery". The levy of penalty on P.C. computer system with keyboard and monitor is confirmed and to that extent the order of the Tribunal is set aside.
10. In the result, the revision is allowed in part as indicated above. The matter is remitted to the Tribunal for reconsideration of levy of penalty in the light of observations made above on electronic weigh bridge and to record necessary findings. The order of penalty on electronic weigh bridge with P.C. computer system with keyboard and monitor is confirmed.