Heard learned Counsel for the assessee and learned Standing Counsel for the State.
This revision has been filed by the assessee under Section 11(1) of the U.P. Trade Tax Act for the assessment year 2002-03 against the order of the Tribunal dated 28th of March, 2006 by which it has confirmed the penalty imposed on the assessee under Section 15A(1) (o) of the Act. The questions of law framed are hereunder :-
(1) Whether in view of the judgment of this Hon'ble Court int he case of M/s Network Limited, Noida Vs. Commissioner Trade Tax, reported in 1999 UPTC page 750; Commissioner Sales Tax Vs. Jaipur Golder Transport Co., reported in 1999 UPTC pag3 1167; Central Footwear Varanasi Vs. Commissioner Sales Tax, reported in 2003 NTN Vol.22 page 238 ; and Commissioner Sales Tax Vs. Micro Foam Industries Limited, reported in 2003 STI page 251, the imposition of penalty is justified ?
(2) Whether form 31 having been filed along with the reply to show cause notice before the seizure, the levy of penalty is justified ?
(3) Whether in view of the judgment of this Hon'ble Court in the case of M/s Kalyan Plastic Industries vs. Commissioner Sales Tax, 1993 UPTC page 1366; DCM Limited vs. Commissioner Sales Tax, reported in 1993 UPTC page 1212 ; Commissioner Sales Tax vs. M/s Garg Associates Pvt. Limited, reported in 1993 UPTC page 79; M/s WIMCO Limited vs. Commissioner Sales Tax, reported in 1993 UPTC page 148, the imposition of penalty is justified ?
(4) Whether the applicant has imported the goods as raw material and not meant for resale, the imposition of penalty is justified ? Whether the applicant has imported the goods against form 'C' and the relevant entries are duly made in the books of accounts of the applicant, still the imposition of penalty is justified ?
(5) Whether the goods are being imported through Bank, the authorities were justified in imposing the penalty?
(6) Whether in any view of the matter, the imposition of penalty of Rs.1,27,206/- is justified ?
(7) Whether in view of the facts and circumstances of the case, the order passed by the Trade Tax Tribunal is justified ?
The facts of the case are that the assessee had placed a purchase order on 7.1.2003 on one M/s ESSAR Steels Limited, New Delhi for supply of H.R. Coils. The assessee is a limited Company incorporated under the Indian Companies Act having its registered Office at B.30, Section 57, NOIDA.
Thus, the raw-material have been brought in from Delhi to NOIDA. It was a requirement that the raw- material should have been accompanied with Form-
31. It is the assessee's case that he has sent ten Forms-31 in compliance of the purchase order. However, on 29th of January, 2003 the raw- material was found to be not supported by any Form-31.
The goods was therefore, detained and a show cause notice was issued.
The assessee has submitted a detailed reply to the show cause notice, he also placed Form-31. The reply of the assessee is appended as Annexure-3 to the revision. However, the reply of the assessee was not accepted and proceedings under Section 15A(1)
(o) of the U.P. Trade Tax Act were initiated and a penalty order was passed on 31.3.2003. Aggrieved by the said order the assessee filed an appeal, which was also dismissed on 18.12.2003 and thereafter a second appeal was filed by the assessee before the Trade Tax Tribunal, which has also been dismissed on 28.3.2006.
However, a perusal of the order of the Tribunal shows that admittedly the case, which had been brought in were in the nature of raw-material and after issuance of a show cause notice the assessee had along with its reply submitted Form-31 before the passing of seizure order.
The Tribunal has come to the conclusion that the Forms-31, which were produced by the assessee were either false or forged or were not answering the description of the goods, which had been brought in, no discrepancy has been found by the Tribunal in its order against Form-31, which was produced before the order of seizure.
Having heard learned counsels for both sides, I am of the opinion that since the Tribunal had not recorded any adverse finding against Forms-31, which were placed by the assessee before the passing of the seizure order it could not be said that the assessee did not have the required documents or that any intention to evade the tax was reflected from the documents that were there before the Tribunal or even there before the assessing authority. Thus, the provisions of Section 15A(1)
(o) of the Act are not attracted in the facts and circumstances of the case, the imposition of penalty is not justified. The questions of law are answered in favour of the assessee and against the department. The penalty is deleted.
This Revision is allowed.
Order Date :- 13.1.2010 S.P.