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TMI Blog2003 (8) TMI 482X X X X Extracts X X X X X X X X Extracts X X X X ..... 13-A of the Act read with section 8-A(5) of the Act, for non-production of form No. 49. 3.. The factual scenario of the case is not much in dispute. It lies in narrow compass. On June 4, 2003 the authorised officer seized the goods, namely, stainless steel sheets which were being transported by M/s. Moradabad Bijnor Transport Company from Orai to Moradbad. The goods were accompanied with invoice No. 7 and G.R. No. 1588. The sole objection of the authorised officer was that the goods have been accompanied with form No. 49 as required under section 8-A(5) of the Act. The seizure was made due to non-production of form No. 49 and a presumption was raised that the goods were being transported with intention to evade payment of tax. 4.. A re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods under section 13-A (1-A) of the Act, validity of order of the Tribunal has been questioned in the present revision. 5.. Heard the learned counsel for the parties and perused the record. Shri B.K. Pandey the learned Standing Counsel submitted that the requirement under section 8-A(5) of the Act is that the goods "liable to tax" should accompany the requisite form, namely, form No. 49, otherwise there would be a presumption that the goods have not been accounted for in the account books. He also submitted that the finding of the Tribunal that for breach of section 8-A(5) of the Act the provisions of section 13-A(4) of the Act cannot be invoked, is incorrect in law. In contra Shri Bharat Ji Agrawal, the learned Senior Counsel submitted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th a view to evade payment of tax; or (b) if the dealer of such goods is not ascertainable, the transporter, and if the transporter is also not ascertainable the owner or the person-in-charge of the vehicle, as the case may be, is transporting such goods in his own account; and such dealer, transporter, owner or person-in-charge of the vehicle, as the case may be, shall be assessed, and be also liable to penalty in accordance with the provisions of the Act." 8.. The department by issuing circulars has confined the applicability of the section 8-A(5), presently, in respect of only three commodities. At this juncture it is also relevant to have a look to the circular dated January 1, 2003 issued by the department. This circular has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of the transportation of all the goods "liable to tax", is not correct. Apart from the above, a close reading of the aforesaid circular dated January 1, 2003 also speaks the same. The head quarter of the department clarified the position that the form No. 49 is required in respect of items "iron and steel" as defined under section 14 of the Central Sales Tax Act. It also clarified the position that the iron and steel shall not cover the iron goods and the demand of form No. 49 by the officials is unjustified. 10.. At this stage it was submitted by the learned Standing Counsel that at least the applicant should have applied for the grant of form No. 49 to the department and in absence of rejection order or the refusal by the depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also held that the position may be different with regard to an assessee who can contest the validity or legality of such instructions but so far as the department is concerned, such right is not available. [see Collector of Central Excise, Patna v. Usha Martin Industries [1998] 111 STC 254 (SC); (1997) 7 SCC 47]. In the case of Ranadey Micronutrients v. Collector of Central Excise (1996) 10 SCC 387 this Court held that the whole objective of such circulars is to adopt a uniform practice and to inform the trade as to how a particular product will be treated for the purposes of excise duty. The Court also held that it does not lie in the mouth of the Revenue to repudiate a circular issued by the Board on the basis that it is inconsistent wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s rate of tax on the turnover in respect of goods, other than the goods referred to in clause (a) of the aforesaid section. These two clauses operate mutually in exclusive field. Notification prescribing rate of tax on iron and steel has been issued under section 3-A(1)(a) of the Act. Stainless steel sheet is not covered by the said notification. A separate notification prescribing a different rate of tax on stainless steel sheet has been issued under section 3A(1)(b) of the Act. The Tribunal has rightly taken into consideration the assessment orders of the earlier years of the assessee itself to come to the conclusion that the department has always been treating the stainless steel sheets as a different commodity than Iron and Steel. 14. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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