9911796707
TMI Blog2002 (8) TMI 810X X X X Extracts X X X X X X X X Extracts X X X X ..... t the applicant/ revisionist purchased component parts of the meters, such as, frames and magnet yoke, valued at Rs. 3,31,808 from Auto and General Castings Private Ltd., Delhi, a regular supplier of the applicant for which a "form 31" No. 2278535 was despatched, however, the goods in question were being transported through truck No. DL-1L/C-8997. On interception Trade Tax Officer, Mobile Squad, on April 8, 2002 found that the consignment was not accompanied with the declaration "form No. 31". Therefore, a notice purported to have been issued under section 28-A of "the Act". The reply of the applicant/revisionist was not satisfactory; therefore, goods were seized on April 10, 2002 on the estimated value of Rs. 3,32,000 and security three times to the tax payable, i.e., Rs. 99,600 was demanded to release the goods. Against the above order a representation under section 13-A(6) of "the Act" was filed before the Assistant Commissioner (Enforcement) which was rejected on April 15, 2002. Being aggrieved appeal was filed before the Trade Tax Tribunal, where it was contended on behalf of the applicant/revisionist that there was no check-post established on way from Delhi to Noida wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal was rejected and the second appeal was also allowed and the penalty was knocked off. The revision of revenue was dismissed following the decision of Jain Shudh Vanaspati [1983] 53 STC 54 (All.); 1983 UPTC 198 with observation that "in the instant case the charge against the assessee was, as already stated, that the goods were imported without 'form 31'. This has also been held concurrently by the first appellate authority and thereafter in second appeal by the Trade Tax Tribunal. The first appellate authority had sustained the penalty on the finding that mens rea was not an essential ingredient in the imposition of penalty under section 15-A(1)(o) of 'the Act' ". 5.. In reference to Jain Shudh Vanaspati [1983] 53 STC 54 (All); 1983 UPTC 198 this Court has observed that "the Tribunal has in categorical terms recorded a finding that there was no intention to evade payment of tax when the goods were sought to be imported without 'form 31'. It has held that in the period to which the transaction related, the turnover of the assessee was exempt from the payment of tax because of the eligibility certificate granted to it under section 4-A of 'the Act'. It further held that the go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention to evade payment of tax. 9.. According to the applicant/revisionist by a series of decisions right from judgment in the case of Jain Shudh Vanaspati Ltd. v. State of U.P. [1983] 53 STC 54 (All.); 1983 UPTC 198 down to Indian Trading Co. v. Commissioner of Trade Tax 2002 UPTC 593 the consistent view of this honourable Court has been that the two conditions must co-exist for seizure of goods, namely, (1) the consignment is not accompanied with proper and genuine documents and (2) there are reasons to be satisfied that the goods were being transported in an attempt to evade payment of tax due or likely to be due under the "Act". Mere absence of form No. 31 was not sufficient to justify seizure of goods. The seizure of goods could be made only in the circumstance that there was an attempt to evade payment of tax. 10.. According to the applicant/revisionist that this honourable Court has already taken the view in the case of Commissioner of Sales Tax v. Seth Industrial Corporation 1994 UPTC 140 that judicial powers cannot be permitted to be pre-empted by passing a penalty order. The authorities therefore retained their powers to release the goods in spite of penalty order hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cording to the learned counsel for the applicant/revisionist he himself in the relevant financial year has used 1,264 form No. 31 and out of these has got only one "form No. 31" passed and checked from the check-post. Undisputedly in the present case goods were being transported without "form No. 31" regardless of fact that the applicant/revisionist is a registered dealer and paying tax regularly but on interception by the mobile squad of trade tax officer it was found that the goods being transported were not accompanied by "form No. 31" it was not a bona fide on the part of the applicant/ revisionist, he has himself to disclose "form No. 31" or are not availability of the check-post on the way Delhi to its destination. 14.. The applicant/revisionist could not bring the transaction to disclose to the check-post authority. Rule 83(4) of the U.P. Trade Tax provides as under: "(a) The owner, driver or any other person-in-charge of the vehicle or vessel shall, in respect of such goods carried in the vehicle or vessel as are notified under or referred in sub-section (1) of section 28-A and as exceed the quantity, measure or value specified in the notification therein, carry with hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not deposited as demanded by the tax authorities as such they proceeded under section 15-A(4) of "the Act" and have imposed penalty equivalent to the demand of security and in appeal under section 9 of "the Act" by the order dated May 29, 2002 of the Assistant Commissioner imposing the penalty was upheld; however, the Deputy Commissioner by his order dated June 24, 2002 has stayed 85 per cent of the disputed amount of tax of penalty of Rs. 99,600 before hearing the first appeal. In compliance to the order dated June 24, 2002 the applicant/revisionist has already deposited Rs. 14,640 as is evident from (annexure 9). In view of the circumstances and in the light of section 13-A(6) of "the Act " the penalty which was to be paid has already been paid in cash. Therefore, on the facts and circumstances and in the interest of justice the seized goods on April 10, 2002 is directed to be released forthwith in favour of the applicant/revisionist without any further demand of security. 19.. In view of the above the questions of law are dealt with accordingly. The trade tax revision is disposed of. However, the proceedings for finalisation of the penalty may be made before Deputy Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
