9911796707
TMI Blog2009 (3) TMI 963X X X X Extracts X X X X X X X X Extracts X X X X ..... rom outside the State of U.P. was to the extent of 57 per cent. Since balance remained of the packing material obtained from outside U.P., the conclusion reached by the first appellate authority was correct, i.e., to say that no evasion of packets had been made by the assessee and in fact, he could have made further stock transfers outside the State of U.P. to the extent of the balance of 57 per cent.If the assessee had exceeded the use of packing material for making stock transfer beyond 57 per cent, then alone, tax may have been imposed and also penalty to the same extent should have been imposed on the assessee. In favour of the assessee.The impositions of penalty in the present case is not justified. X X X X Extracts X X X X X X X X Extracts X X X X ..... the course of inter-State trade or commerce, or in the course of export and the Trade Tax Tribunal has committed an error of law in completely overlooking this aspect of the matter while confirming the imposition of penalty? 3.. Whether the applicant has been admittedly granted exemption from payment of tax under section 4A of the U.P. Trade Tax Act once an eligibility certificate was granted on account of which the applicant was exempted from payment of tax, sale of such notified goods in view of the eligibility certificate; hence he was not liable to pay any amount of tax and consequently no penalty could be legally imposed for not selling those manufactured goods/notified goods within the State of U.P. or in the course of inter-State tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to be set aside? The facts of the case are that the assessee is engaged in the manufacture of deshi ghee and milk powder. Its unit is situated at Hasanpur Road, Gajraula, Moradabad. The unit, being a new unit, was granted eligibility certificate on January 1, 1996, granting exemption from payment of tax for a period of nine years or to the extent of 125 per cent of the fixed capital investment. The assessment proceedings for the assessment year 1995-96 were completed and the account books were also accepted and an assessment order was made for the said year. However, proceedings were initiated against the assessee under section 4B(5) of the U.P. Trade Tax Act of imposition of penalty on the ground that the applicant had purchased pac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the packing material purchased against form IIIB in the State of U.P. Both the first appellate authority and the second appellate authority while examining figures have clearly mentioned that 39 per cent of the stock was transferred outside U.P. and the packing material, purchased was for a sum of Rs. 1,35,52,523 i.e., packing material constituted 57 per cent of the total packing material purchased. Thus, the packing material purchased from outside the State of U.P. had remained unused to the extent of 18 per cent of the packing material purchased. The learned counsel for the assessee has argued that the law with regard to this has been well-settled by the Allahabad High Court and has relied on three decisions. Firstly, he has relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the benefit of eligibility certificate, no amount of penalty can be imposed. In reply to all these contentions, learned standing counsel has argued that the Tribunal has taken a view that although all the facts and figures were not disputed before the Tribunal, the Tribunal varied with the view given by the first appellate authority on account of the fact that the assessee could not show or establish as to what was the packing material used against form IIIB and what was the packing material used against form C. Having heard learned counsel on both the sides and having examined the materials and evidences on record, I am of the view that the contentions as raised by the learned counsel for the revisionist have substance on account of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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