This Commercial Tax Revision under Section 58 of the Value Added Tax, 2008 is directed against the order of the Trade Tax Tribunal dated 28.05.2011 passed in Second Appeal No. 331 of 2011. The second appeal was directed against an order of the First Appellate Authority namely Additional Commissioner-II (Appeal) Commercial Tax, Mirzapur dated 23.04.2011 whereunder penalty of Rs.6,56,306/- was affirmed and the appeal was dismissed.
Facts in short giving rise to the present revision are as follows :
Revisionist, before this Court, deals in Silver ornaments. The Assistant Commissioner, Mobile Squad on 30.07.2011 at around 5:55 a.m. intercepted vehicle no. U.P. 83 N/6532 on national highway at Kuberpur (Etmadpur). The vehicle was carrying four bag of silver ornaments. The document produced at the time of surprise checking by the Driver were the Chalan No. 07 dated 30.06.2010 and the letter dated 30.07.2010. The mobile squad found that the total weight of the consignment was disclosed as 185.365 kg. while the actual weight of the consignment was 161.304 kg. Accordingly, the goods were seized and show cause notice was served upon the revisionist.
The legality of the seizure was examined by the Tribunal in Second Appeal No. 218 of 2010. The seizure was held to be justified however, demand of security for release of the goods was reduced to the amount of tax payable on the goods. The revisionist filed Trade Tax Revision No. 793 of 2010 wherein an order was passed permitting the revisionist to deposit 50% of the amount demanded in cash and the balance 50% in the shape of security other than cash or bank guarantee.
In order to keep the record straight, it may be noticed that the department also filed Trade Tax Revision No. 797 of 2010 against the order dated 15.09.2010 which was also disposed of on the same terms and conditions.
Proceedings under Section 48(5) read with Section 32 of the Act for imposition of penalty were initiated and vide order dated 14.01.2010 penalty to the tune of Rs.6,56,306/- i.e. 40% of the value of seized goods was imposed by the authority.
Not being satisfied, the revisionist filed Appeal No. 183 of 2011 which was dismissed vide order dated 23.04.2011. The levy of the penalty was upheld.
The Revisionist, therefore, filed Second Appeal under Section 57(4) of the Trade Tax Act before the Tribunal.
The Tribunal, after considering the submissions made by the counsel for the parties, in its order dated 28.05.2011 has recorded the following findings :
(a) The goods which were seized were not as per the document produced at the time of seizure.
(b) the Chalan was bearing 30.07.2010 as the date when the goods themselves were intercepted at 6:00 a.m. on the same date.
(c) the goods were seized when the vehicle was travelling from Agra to Tundla when according to the assessee the goods should have been moving in the opposite direction and
(d) the weight of the consignment as mentioned in the Chalan was 185.365 kg. while the actual weight of consignment was 161.304 k.g. only.
In these circumstances a categorical finding of fact has been recorded that the goods were being dealt with by the assessee outside the record maintained for the purpose, consequently imposition of penalty by the authorities below has been upheld.
After having arrived at the said conclusion, the Tribunal proceeded to hold that the imposition of penalty to the tune of Rs.6,56,306/- was slightly excessive and, therefore, the penalty was reduced by Rs.50,000/-.
Counsel for the assessee made an attempt to challenge the findings recorded by the Tribunal in the order dated 28.05.2011 by contending that the transaction was duly recorded in the account books and that there is no justification for reducing the penalty by Rs.50,000/- only.
I have heard learned counsel for the parties and have gone through the records of the present writ petition.
I am of the considered opinion that pure finding of facts have been recorded by the First Appellate Authorities which have been affirmed by the Tribunal for the purposes of upholding the levy of penalty in the facts of the present case. The same needs no interference in exercise of revisional jurisdiction under Section 58 of the Value Added Tax.
The Tribunal in fact had been more than fair to reduce the penalty by Rs.50,000/-.
There is no illegality in the order so passed.
Revision lacks merit and is accordingly dismissed.
Dated : 14.07.2011 VR/CTR-508/11