High Court of Judicature at Allahabad
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Kehr Surgical & Allied Products Pvt. Ltd. v. Commissioner Trade Tax U.P . - SALES/TRADE TAX REVISION No. 272 of 1996  RD-AH 510 (11 August 2004)
Court no. 55
Trade Tax Revision no. 272 of 1996.
Kehr Surgical & Allied Products Pvt. Ltd., Kanpur............Revisionist.
Commissioner of Trade Tax U. P. Lucknow......................Respondent.
Hon'ble Rajes Kumar, J.
The present revision under Section 11 of U. P. Trade Tax Act (hereinafter referred to as Act), is directed against the order of Tribunal date 22.11.1995 relating to the assessment years 1992-93.
On 20.1.1992 at Vijay Nagar Check Post, on the checking of vehicle no. EBL 4148 and on physical verification of the goods, it was found that Form 31 no. FY-551912 and Form 35 relating to the furniture for the value of Rs.14,347/- was produced, but neither Form 31 nor Form 35 was submitted in respect of 12 pieces of Plastic Handles and Grinding Wheels. In absence of declaration of the aforesaid 12 pieces in Form 35 or in Form 31, a show cause notice was issued. Applicant filed reply and alongwith the reply to the show cause notice, Form 31 relating to 12 pieces of Plastic Handles and Grinding Wheels were submitted and it was explained that it was in possession of a person who had gone to had a tea, therefore, it could not be submitted. This explanation was not accepted and goods were seized and subsequently released on furnishing of security. Subsequently in pursuance of seizure, a show cause notice was issued under Section 15-A (1) (o) of the Act. Dealer filed reply which was not accepted and a penalty at Rs.31,272/- was levied on the value of Rs.78,180/-. First appeal filed by the dealer was rejected. In Second Appeal, Tribunal reduced the penalty to Rs.20,000/-.
Heard Counsel for the parties.
Learned Counsel for the applicant contended that the Tribunal was not justified in rejecting the explanation and in confirming the levy of penalty. He further submitted that Form 31 was submitted alongwith the show cause notice, inasmuch as, goods were raw-material transferred from Head Office to Branch Office byway of stock transfer.
I have perused the order of Tribunal and the authorities below. In my opinion, authorities have not erred in levying the penalty on the facts and circumstances of the case. No reason has been given that when Form 35 was filled for furniture why Form 35 was not filled for 12 pieces of Plastic Handles and Grinding Wheels. Tribunal on the consideration of entire facts and circumstances, rejected the explanation of the applicant. Rejection of explanation can not be said without any basis. I therefore, do not find any infirmity in the order of Tribunal in confirming the levy of penalty. However, on the facts and circumstances of the case namely Form 31 was submitted alongwith the show cause notice and it was explained that for import of goods, Form 31 was issued earlier and the goods were coming by way of stock transfer from Head Office to Depot, it would be reasonable to reduce the amount of penalty to the extent of amount of tax. Tribunal is directed to calculate the amount of penalty under Section 11 (8) of the Act.
In the result, revision is allowed in part and the penalty is reduced to the amount of tax. Tribunal is directed to calculate amount of penalty and pass appropriate orders under Section 11 (8) of the Act.
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