9911796707
TMI Blog2002 (5) TMI 836X X X X Extracts X X X X X X X X Extracts X X X X ..... for adjudication of the present revisions are that the applicant/revisionist is a registered dealer of U.P. Trade Tax Act as well as Central Sales Tax Act and has imported nylon fishnet fabrics from outside the State but the consignment was detained and seized on October 31, 2001 by the Trade Tax Officer, Sahayata Kendra, Chaukhata, district Allahabad under purported exercise of powers under section 28-A of the Act on the ground that the aforesaid consignment was not accompanied with form XXXI. The applicant preferred representation under proviso to section 13-A(6) of the Act before Assistant Commissioner, Pravartan, Trade Tax, Allahabad stating that nylon fishnet fabrics, being rayon fabrics, were exempt from payment of trade tax as "text ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o tax or not could be decided only at the time of assessment. 4.. It has been submitted on behalf of the applicant/revisionist that nylon fishnet fabric or nylon fabric was same as rayon fabric which being textile was exempted under Notification No. 303 dated February 1, 1989 and the High Court of Karnataka had already taken the view that nylon fabrics are same as rayon fabrics in the case of P.R. Chindak v. Assistant Commissioner of Commercial Taxes reported in [1994] 93 STC 139. It has also been pointed on behalf of the applicant/revisionist that the Commissioner of Trade Tax had himself taken the view in the matter of Om Industries, Kanpur in exercise of his powers under section 35 of the Act that nylon fishnet fabrics, being textiles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d is nylon fishnet fabric or nylon fabric or rayon fabric. The two commodities were different and distinct. It is a different matter that in the matter of Gaurav Traders, the assessee had mentioned at one place that according to him the term "HDPF, fabrics" also included "nylon fabrics, fishnet fabric or mosquito net fabric". It is important to point out that the judgment and order of the Commissioner, Trade Tax in the matter of Gaurav Traders was directly concerned with the term "HDPE fabrics " and not with the term "nylon fishnet fabrics". 6.. In these circumstances the following questions have been placed for consideration: "(1) whether, on the facts and in the circumstances of the case, the seizure of the goods, i.e., nylon fishnet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rded no penalty can be imposed. In the instant case no one of the lower authorities has recorded any such finding. Therefore, the orders of imposing the penalty passed by the authorities below cannot be sustained." 9.. In 2001 UPTC 770 (Moradabad Rubber Scrap, Moradabad v. Commissioner of Sales Tax) it was held that seizure and security demanded by the assessing authority was not found sustainable when finding recorded by the Tribunal was not very satisfactory and warranting seizure of goods. Therefore, the direction of the Tribunal to the dealer to furnish personal bond was treated to be not sustainable. In para 2 of the judgment the Tribunal has held the grounds mentioned in the order of seizure made by the Sales Tax Officer and Assis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken up by the assessee was that there was no evil intention or an attempt to evade assessment or payment of tax due or likely to be due under the Act in omitting to obtaining form XXXI, required under the relevant rules read with section 28-A of the Act. The assessee pleaded that it was under a bona fide belief that the Gas Cylinders in dispute, were not the articles of trade involving purchase and sale. The case taken up was that the respondent-assessee had only fabricated those Gas Cylinders on job-work getting imported iron sheets from Indian Oil Corporation and the Gas Cylinders were being carried to the Branch of Indian Oil Corporation, Mathura after their manufacture. The Tribunal believed the case of the assessee and has recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e records for the requirement of making a seizure and demand of security. The taxing authority has to indicate that the attempt were being made on the part of the applicant/revisionist to evade payment of tax due or likely to be due. Here the taxing authorities as well as Tribunal have not indicated and given a finding that the attempt was being made to evade tax due or likely to be due. On the other hand it was indicated that in respect of imposition of imported goods could be made by the assessing authority, the applicant/revisionist is a bona fide registered dealer and has himself bona fidely come forward though the accompanied goods were not with form XXXI therefore, in these circumstances the payment of security while releasing the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
