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TMI Blog2024 (6) TMI 366X X X X Extracts X X X X X X X X Extracts X X X X ..... has been properly discussed by the appellate court and thereafter entered into decision on merits. As such above objection holds no much water at the present stage of second appeal. The foremost important question of law involved in this appeal is pertaining to decision of the Commercial Tax Tribunal which finally hold that imposition of penalty due to want of Form 28B of Bihar Finance Act, 1981, which was not required for the purpose of transportation of the goods in the seized vehicle. Hence, imposition of penalty was not proper and justified under law. In that view of the matter reversal of above decree passed by concerned trial court by the first appellate court is justified or not. The learned trial court found the plaintiff to be entitled to the refund of penalty amount of Rs. 48,432/- along with interest at the rate of 18 % per annum from 20.02.1993 till its realization. From perusal of the impugned judgment passed by first appellate court it appears that the judgment of the learned Appellate Court is based upon extraneous facts and conjecture that the appellant/plaintiff has filed no receipt of deposit of the fine amount of Rs. 48,432 as well as he can t claim refund of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and set aside the Judgment and decree passed on 24.09.2011 decree signed on 17.10.2011 passed by learned Sub Judge VI, Dhanbad in Money Suit No. 35 of 2006 whereby and whereunder the money suit of the plaintiff/ appellant has been decreed and the defendants/respondents were directed to pay a sum of Rs. 1,68,301.58 paisa along with interest at the rate of 18 % per annum from 20.11.2006 till realization. 3. The appellant has prayed for confirmation of Judgment and Decree passed by learned trial court setting aside the judgment and decree passed by the learned appellate court in the aforesaid Money Appeal No. 02 of 2012. 4. Facts giving rise to this appeal in brief is that the plaintiff/appellant is partnership firm carrying on business of automobiles parts at village Nirsa District Dhanbad and is duly registered under Indian Partnership Act. The plaintiff had purchased mobil goods from M/s Indian Oil Corporation Ltd, a Central Government undertaking worth Rs. 1,57,695/- which was dispatched from Bastacola Jharia, Dhanbad to the plaintiff through truck no. BR 17A 4754 dated 19.02.1993. It is alleged that when the said truck along with goods reached near Police Line, Dhanbad, the Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid goods and the full tax has been paid by the petitioner on its purchase. Therefore his liability was further to pay only 1 per centum additional tax on which the penalty could have been imposed according to law and the JCCT (Appeal) has rightly passed the order giving direction to the Assessing Officer for imposing penalty accordingly. The commissioner, Commercial Tax has wrongly passed the order without appreciating the legal position which is fit to be aside. In the result, we find merit in this revision application which is accordingly allowed. The impugned order dated 26.07.95 is hereby set aside and the passed by the Appellate Court dated 01.11.1993 is restored. 8. It is alleged by plaintiff/appellant that as a consequence of order of the Commercial Tax, Tribunal Ranchi dated 25.11.2003 the plaintiff/appellant is entitled to get refund of the penalty amount along with prevailing rate of interest i.e. at the rate of 18 per cent per annum calculated from 20.02.1993 i.e. the date of deposit by the plaintiff. Accordingly, on several occasion the plaintiff visited to the office of the respondent no. 6, Assistant Commissioner Commercial Tax Officer, IB, Dhanbad to get refund of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be not justified under law by the Hon ble Commercial Tax Tribunal, therefore, plaintiff was entitled to refund all the said fine amount with interest. Therefore, decreed the suit directing the defendants to pay a sum of Rs. 1,68,301.58 paisa along with interest at the rate of 18 % from 20.11.2006 onwards till realization and also directed to deposit the said amount within three months. 13. The Judgment and decree passed by learned trial court was assailed by the defendant/respondent nos. 1 to 6 vide Money Appeal No. 2 of 2012 before the Principal District Judge, Dhanbad mainly on the ground that:- (i) As per Section 55 of the Bihar Finance Act, 1981 no appeal or revision was allowed against the assessment order. (ii) The learned trial court has debarred the defendants from filing their written statement and also rejected the written statement of State of Jharkhand which caused prejudiced to the appellants. (iii) The fine amount/penalty was not deposited by the plaintiff/respondent rather by the driver of the truck bearing registration no. BR 17A 4754 namely, Md. Mumtaj Hussain who never filed any application to refund in the prescribed form before the prescribed authority. 14. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt appellant penalty imposed by the department was deposited and goods vehicles were released. If the amount itself has been admitted to be deposited, then mere production of receipt is a bare formality and cannot throw the appellant to be non-suited. The judgment of appellate court is also against the principles of equity, justice and good conscience which prevents un-just enrichment of one person at the cost of another. When the department has illegally received the penalty amount then it is bound to restore/refund the same to the person at whose instance it was deposited and cannot retain it without any lawful justification. Therefore, impugned judgment and decree passed by learned lower appellate court is absolutely illegal and fit to be set aside and this appeal may be allowed. 16. On the other hand learned counsel for the respondents has submitted that the learned appellate court below has very wisely and aptly, apprised the materials available on record and passed a reasoned judgment which suffers from no illegality or infirmity calling for any interference in this appeal which is fit to be dismissed. 17. Now reverting back to the substantial question of law involved in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay also attendance through lawyer has been filed on behalf of the respondents but no one turned up on behalf of the respondents and rejoinder has also not been filed. This shows that respondent has no any objection in admitting this appeal. Hence, considering the facts, this money appeal is admitted subject to condonation of delay will be heard at the time of final hearing .. .. . 19. From the aforesaid order of the appellate court it transpires that present appellant has not raised any objection at the very stage of admission of the appeal on the ground of limitation and has taken the matter very lightly and also participated in the hearing on merits without raising aforesaid objection at any stage of the proceeding. Under aforementioned circumstances, it may be deemed that matter of delay has been properly discussed by the appellate court and thereafter entered into decision on merits. As such above objection holds no much water at the present stage of second appeal. 20. The foremost important question of law involved in this appeal is pertaining to decision of the Commercial Tax Tribunal which finally hold that imposition of penalty due to want of Form 28B of Bihar Finance Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appears that the judgment of the learned Appellate Court is based upon extraneous facts and conjecture that the appellant/plaintiff has filed no receipt of deposit of the fine amount of Rs. 48,432 as well as he can t claim refund of the said amount and allowed the appeal setting aside the judgment of concerned trial court. 23. In the instant case, at the stage of trial the defendants/respondents never disputed the deposit of penalty amount. It is also not disputed that on issuance of direction by the Commercial Tax Officer of I.B. the appellant appeared and also explained that no permit is required in form 28-B Bihar Finance Act, 1981 for transportation of goods seized in this case. In spite of that penalty was imposed which was also deposited and goods and vehicles were released. It is evident that the order passed by Commercial Tax Officer was ultimately quashed by the higher forum and it was found that there was no contravention of the Section 31 (3) of Bihar Finance Act, 1981 in the instant case. Under such circumstance the penalty illegally imposed upon the appellant is required to be refunded as per doctrine of equity, justice and good conscience which prevents unjust enrichm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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