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TMI Blog2006 (10) TMI 406X X X X Extracts X X X X X X X X Extracts X X X X ..... ct from September 5, 1989 for the period of five years. The Commissioner of Trade Tax issued notice under section 4A(3) of the Act for the cancellation of the eligibility certificate mainly on the ground that at the time of survey dated January 10, 1990 difference in the stock as per stock register and physical verification was found. At the time of aforesaid survey, it was also found that on January 9, 1990 at Naubatpur Check-post, 12 forms 31 were passed for 12 trucks of coal, but by the time of survey only six trucks were shown by 6.40 p.m. Thus, it has been inferred that the applicant was involved in selling the coal and according to the Commissioner of Trade Tax it amounts to misuse of eligibility certificate. The applicant filed reply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er-sized and was not useable in the manufacturing of smokeless fuel and coal tar was sold and the turnover of sale of coal was disclosed. He submitted that adverse inference drawn from the fact that out of 12 trucks of coal imported against form 31, entry of six trucks could not be made by the time of survey and the coal therein was sold is based on no material inasmuch as the plea of the applicant in this regard has been accepted by this court in Sri Ram Fuel (Pvt) Ltd. v. Commissioner of Trade Tax (decided on March 2, 2005 Trade Tax Revision No. 1153 of 1995). He further submitted that in the case of Kamal Fuels, Musaffarnagar v. Commissioner, Trade Tax, U.P., Lucknow reported in [2005] STI (All) 70, this court held that merely because th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntered on January 10, 1990 on their arrival. Thus, inference drawn by the Tribunal and the authorities below that the coal has been sold as such, are based on no material and merely on surmises and conjectures. So far as revision filed by the Commissioner of Trade Tax is concerned, I find force in the argument of learned Standing Counsel. In the assessment order, it is clearly mentioned that some of the coal imported by the dealer were of small size and were not useable being rejected coal and permission for their sale was obtained from Coal India Limited which was given vide letter dated January 19, 1990. Applicant submitted that such coal were collected and were burnt and such coal are called as SSF rejected coal, therefore, such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e tax on the cement. It is also open to the assessing authority to levy the penalty under section 4B(5) of the Act for not using the cement in the manufacturing of final product for which recognition certificate was issued for the violation of the condition of section 4B(2) of the Act but the alleged reasons cannot be a basis to infer the misuse of the eligibility certificate and cannot be a ground for cancellation of the eligibility certificate. It is not the case of Commissioner of Trade Tax that the applicant was not involved in the manufacturing of coal briquettes. In the case of Protek Coating Pvt. Ltd., Ghaziabad v. Commissioner of Trade Tax reported in [1999] UPTC 138. This court held as follows: A finding of misuse of an eli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pvt. Ltd., Shikohabad v. State of U.P. reported in [1996] UPTC 341, dealer was found importing the goods from outside the State in an attempt to evade the tax. On this ground exemption was refused under section 4A of the Act. Division Bench of this court held as follows: The second ground for rejecting the review application is that the petitioner made an attempt to evade tax at the check-post. This, in any case, cannot be a ground to reject the review application. If the petitioner made an attempt to evade tax or evaded tax, then a different consequence will flow and for that reason the review application cannot be rejected. In the case of Mala Roller Flour Mills, Meerut v. Commissioner of Trade Tax reported in [2000] 117 STC 450 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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