High Court of Judicature at Allahabad
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Shri Narainji Gopal v. Commissioner of Sales Tax (U.P.), Lucknow & another - SALES/TRADE TAX REVISION No. 1875 of 1992  RD-AH 419 (31 October 2003)
SALES TAX REVISION NO.1875 OF 1992
Shri Narainji Gopal ....Applicant
Commissioner of Sales Tax (U.P.), Lucknow & another ....Opp.Party
Hon'ble Rajes Kumar, J.
This revision is directed against the order of Tribunal dated 18.08.1992 for the assessment year 1990-91, by which Tribunal has sustained penalty under Section 15-A(1) (o) of U.P. Sales Tax Act (hereinafter referred to as "Act") at Rs.900/-.
The brief facts of the case that the applicant was a permanent resident of 187, Shahrara Bagh, Allahabad and was working as Assistant Engineer in Ghaziabad Development Authority and was transferred to Lucknow Development Authority. On 02.08.1990, the applicant was bringing one cooking range, which was purchased a day before as a personal luggage by passenger train Prayag Raj Express from Delhi to Allahabad. At Allahabad railway station, the Sales Tax Officer, Railway Check Post, Allahabad seized the goods and subsequently, released on furnishing of security at Rs.3,795/- Seizure was made on the ground that Form-31 as contemplated under Section 28-A of the Act was not available. In pursuance of the seizure order, penalty proceeding under Section 15-A(1)(o) of the Act was initiated and after consideration of the reply of the applicant, a sum of Rs.3,795/- was levied towards penalty. First appeal, filed by the applicant was allowed in part and the amount of penalty was reduced to Rs.2,760/-. Applicant filed second appeal before the Tribunal, which was allowed in part and the amount of penalty was reduced to Rs.900/-.
Heard learned counsel for the parties. I have perused the order of Tribunal and the authorities below.
Tribunal has sustained the levy of penalty on the ground that the cooking range was purchased from M/s Applicances India, a day before and it was not home appliances and it was taxable under the U.P.Sales Tax Act and since it was being brought from New Delhi by rail without any declaration Form, there was a violation of Section 28-A of the Act.
It has not been disputed that the applicant was Assistant Engineer in Ghaziabad Development Authority and was a permanent resident of 187, Shahrara Bagh, Allahabad. None of the authorities found that the applicant was engaged in carrying on the business of cooking range. Cooking range, no doubt is home appliances. Applicant was bringing only one cooking range, therefore, it could not be inferred that it was for sale inside the State of U.P. In the case of Jain Shudh Vanaspati Ltd., Ghaziabad and others Versus State of U.P.and others, reported in 1983 UPTC, 198. The Division Bench of this Court has held that the provisions of Section 28-A is applicable only in respect of those goods, which are meant for sale inside the State of U.P. in connection with the business. Therefore, on the facts and circumstances, the provision of Section 28-A was not applicable and, therefore, the seizure of the goods as well as levy of penalty was patently illegal. It is a matter of sorry affair that even though the law on the subject was being settled by the Division Bench of this Court, as stated above, the Sales Tax authorities had acted arbitrarily and seized the goods and thereafter, initiated the penalty proceeding under Section 15-A(1)(o) of the Act. Confirmation of the penalty by a Member of Tribunal shows the lack of knowledge about the legal position relating to the applicability of Section 28-A.
In the result, the order of Tribunal dated 18.08.1992 is set aside. The penalty levied under Section 15-A (1) (o) is quashed. The authority concerned is directed to refund the amount forthwith within a period of one month from the date of presentation of the certified copy of this order.
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