9911796707
TMI Blog2019 (1) TMI 1298X X X X Extracts X X X X X X X X Extracts X X X X ..... tedly, the assessee is a manufacturer of milk and milk products and also there is no material or reasoning given in the order passed by the Tribunal that the assessee had not utilised the goods imported against Form-C for the purpose of its business. In fact, impliedly, the Tribunal admits that the plastic crates would have been used for the transportation of the goods. Similarly, with respect to the air conditioners that had been imported by the assessee, undisputedly, the assessee was entitled to purchase machinery, machinery parts, etc to run its plant for manufacture of milk and milk products. No finding was recorded by any of the authorities that the air conditioners so imported were not used at the factory premises or in the runnin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been heard on the following question of law: Whether the assessee who is a manufacturer of milk and milk products had made any false representation in utilising Form-C to import plastic crates and air conditioners ? 3. The revision has been filed by the assessee against the order of the Trade Tax Tribunal, Ghaziabad, dated 10.03.2003 passed in second appeal arising from penalty proceedings under Section 10A of the Central Sales Tax Act, 1956 (hereinafter referred to as the Act). 4. Admittedly, the assessee is a manufacturer of milk and milk products. In the registration certificate originally granted to the assessee, amongst others the items mentioned/included were poly bags, chemicals, machinery, machinery parts, boiler, stee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th ill intent, though it always knew or understood that it was not entitled to make such purchases at concessional rate of tax. 7. The Tribunal disbelieved the explanation furnished by the assessee that it had utilised Form-C under the mistaken impression. According to the Tribunal, the assessee would have acted on the advice of its legal advisers and therefore the action of the assessee was not bona fide. Also, the Tribunal has observed, the assessee should have disclosed its intention to buy plastic crates and air conditioner in its registration certificate. On facts, it had been noted that the milk and milk products are separately packed and are placed in the plastic crates only for the purpose of transportation. Therefore, it has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presumptive basis. The fact that the assessee may have had the benefit of legal advice, did not and it could not give rise to a reason to believe that the assessee would have deliberately misutilised Form-C or made a false declaration in that regard. He would submit, there did not exist any material as may have given rise to the necessary finding. 10. Then, it has been submitted, keeping in mind the fact that the assessee was engaged in the manufacture of milk and milk products and considering the fact that there was no allegation of conduct of any business other than that of manufacture and sale of milk products for which it had been granted registration, imposition of penalty was wholly unwarranted. 11. Learned Standing Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so imported were not used at the factory premises or in the running of the plant and machinery. There is also no allegation of use of the air conditioners for private or residential purposes. To that extent, it appears that the authorities had accepted the contention of the assessee that the air conditioners had been utilised in the running of the plant operated by the assessee to manufacture milk and milk products. 14. This being a case of penalty and not of assessment of tax, the outcome of the discussion made above has to be that an independent and reasoned finding of false declaration submitted or misrepresentation made by the assessee was necessary to be recorded to impose a valid penalty. Such finding is absent in the present case. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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