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TMI Blog1996 (5) TMI 399X X X X Extracts X X X X X X X X Extracts X X X X ..... t as also on job work basis. It requires steam coal in huge quantity to be used as fuel for manufacturing the refined oil. In order to bring coal by road from Central Coal Field, Ranchi to Varanasi (where petitioner's factory is situated) within the State of Uttar Pradesh, petitioner requires form 31 as prescribed under the Act and the U.P. Trade Tax Rules (for short, "the Rules"). The petitioner vide application dated September 17, 1994 (annexure 4) requested the Assistant Commissioner (Assessment) I, Trade Tax, Varanasi, to issue 1,500 forms 31 who instead of issuing form 31 issued a notice dated September 23, 1994 under section 15-A(1)(r) of the Act calling upon the petitioner to show cause as to why penalty be not imposed as coal which is being imported by the petitioner on form 31 is being used on job work. The petitioner replied aforesaid show cause notice and ultimately impugned orders referred to above have been passed. Hence this writ petition. 3.. While filing counter-affidavit the respondents have emerged with the plea that the writ petition is barred by alternative remedy of appeal provided under section 9 of the Act and that form 31 which is a declaration of import c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than in connection with business? A germane question also emerges as to whether while issuing form 31 to a registered dealer who intends to import or bring coal in connection with business and also otherwise than in connection with business, i.e., job work, can a condition be imposed that the coal imported against form 31 shall not be utilised for the job work which is otherwise than in connection with business? 7.. While dealing with these questions it is necessary to look into the relevant provisions of sub-section (1) of section 28-A of the Act which reads as under: "28-A. Import of goods into the State against declaration.-(1) Any person (hereinafter in this section referred to as the importer) who intends to bring, import or otherwise receive, into the State from any place without the State, any goods liable to tax under this Act in such quantity or measure or of such value, as exceeds,- (a)(i) twenty kilograms in the case of foodgrains, cereals, pulses, soyabean, and all products thereof, and all raw materials including resin, rosin and oil-seeds used for extracting oils of any kind; and (ii) rupees fifty, in the case of other goods; or (b) the quantity, measure or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to business of buying or selling goods, includes: (i) any trade, commerce or manufacture, or any adventure or concern in the nature of trade, commerce or manufacture whether or not such trade, commerce, manufacture, adventure or concern is carried on with a motive to make profit and whether or not any profit accrues from such trade, commerce, manufacture, adventure or concern; and (ii) any transaction of buying, selling or supplying plant, machinery, raw materials, processing materials, packing materials, empties, consumable stores, waste or by-products, or any other goods of a similar nature or any unserviceable or obsolete or discarded machinery, or any parts or accessories thereof or any waste or scrap or any of them or any other transaction whatsoever which is ancillary to or is connected with or is incidental to, or results from, such trade, commerce, manufacture, adventure or concern; but does not include any activity in the nature of mere service or profession which does not involve the purchase or sale of goods;" 10.. Thus, a bare perusal of abovementioned definition makes it crystal clear that any activity in the nature of mere service or profession which do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has rendered an account of all such forms obtained earlier." 13.. A perusal of above quoted rules indicates that sub-rule (1) of rule 85 provides for the manner or method regarding submission of declaration forms by a registered dealer to the selling dealer or consignor of the other State. It nowhere provides that the registered dealer shall be issued form 31 for the purposes otherwise than in connection with business. We have already observed above that there cannot be any difficulty in issuing form 31 for importing goods in connection with business. In the instant case it is not the point in dispute as to whether form 31 can be issued to a registered dealer or not. The point in dispute is as to whether form 31 can be issued for the coal to be used in job work or not. We have already arrived at the conclusion that form 31 cannot be issued for importing coal to be used in job work which is not included in business. As stated above the true import of sub-section (1) of section 28-A of the Act is that form 31 is meant for importing goods in connection with business and not for importing the goods otherwise than in connection with business. For importing goods otherwise than in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orm 31 for that purpose, he cannot use the coal so imported, on the purposes other than those for which he has imported the same. In the instant case, since the petitioner utilises the coal imported on form 31 admittedly for the business purposes and also for the purposes other than the business, i.e., job work, hence the authorities have rightly imposed the condition that the petitioner shall not utilise the coal imported on form 31 for the job work which is not included in the term "business". In the considered opinion of this Court the said condition imposed by the authorities is fully in consonance with the scheme of the Act and Rules with a view to achieve the objective sought to be achieved by the Act and Rules. This is our precise reply to the next question involved in this case. 17.. Before parting with the case we would like to mention here that the Legislature has already taken care of the contravention of the provisions of section 28-A of the Act by enacting sub-sections (o) and (r) of section 15-A(1) of the Act which provides for penalties that if the assessing authority is satisfied that any dealer or other person imports or transports, or attempts to import or trans ..... X X X X Extracts X X X X X X X X Extracts X X X X
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