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TMI Blog2016 (12) TMI 695X X X X Extracts X X X X X X X X Extracts X X X X ..... n 15-A (1) (o) of the U.P. Trade Tax Act, 1948 ( hereinafter referred to as the 'Act'). The appeal was admitted on 29.7.2009. With the consent of the learned counsel for the parties, this revision is being heard on the following questions of law: "(i) Whether on the facts and in the circumstances of the case, the levy of penalty in regard to the import of 6873.800 Kg. metal waste was justified when copy of goods receipt, purchase invoice/bill and Form-31was produced before the Check Post Authorities voluntary ? (ii) Whether on the facts and in the circumstances of the case, the import of extra 2000 Kg. metal waste without any documents could be treated to be an import by the applicant with a view to evade payment of tax ? (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that the extra goods found in the truck is not related to his firm. The value of the extra found 2000 Kgs. metal waste was estimated @ Rs. 65/- per Kg. and security @ 40% amounting to Rs. 52,000/- was demanded, which was deposited by the transporter and the goods were released to him. The case of the assessee from the very beginning is that he has no concern with the extra found metal waste and for that reason he did not get it released. However, the assessing authority issued a penalty notice under section 15-A (1) (o) of the Act, which was replied by the assessee along with an affidavit dated 8.10.2002. He again took the stand that neither he had any concern with the goods released nor he got it released nor he deposited the secu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found, but also with respect to the goods which were covered by proper and genuine documents, namely, Form-31 bill and GR No.015941 dated 22.4.2002, and which were not even seized. The authorities and the Tribunal have totally ignored the fact that merely the extra found goods were seized and on estimated value thereof, the security to cover up penalty, was demanded which was neither deposited by the applicant nor he got it released. He, therefore, submits that the revision deserves to be allowed with heavy cost. Learned standing counsel supports the impugned order of the Tribunal. However, he does not dispute that merely 2000 Kgs. extra found metal waste was seized and security was demanded only in that respect and no discrepancy was foun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. They also acted in the same manner. The Tribunal even being the last fact finding authority has completely failed to discharge the mandatory obligation under Rule 68(5) of the U.P. Trade Tax Rules. Despite consistent stand taken by the assessee right from the very beginning, none of the authorities including the Tribunal have taken pain to address on the issues raised by the assessee. Neither the assessing authority nor the first appellate authority nor the Tribunal have recorded any finding that who got released the goods. There was no material before the authorities to impose penalty under section 15-A(1)(o) of the Act. Section 15-A (1)(o) of the Act, provides that if the assessing authorities is satisfied that any dealer or other pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him. On the contrary, the transporter had also issued a certificate that the assessee has no concern with the aforesaid 2000 Kgs. metal scrap. This certificate was also filed before the authority. Under the circumstances, there was no evidence before the assessing authority or the first appellate authority or the Tribunal for import or transport of extra found metal waste by the assessee in contravention of the provisions of Section 28-A of the Act. Under the circumstances, with respect to those goods, no penalty could have been imposed upon the assessee. In view of the above discussions, the revision is allowed.The impugned order dated 10.3.2006 in Second Appeal No.515 of 2003 for the Assessment Year 2002-03 passed by the Member, Commerc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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