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M/S JINDAL STRIPS LTD. versus THE COMMISSIONER OF TRADE TAX, U.P. LUCKNOW

High Court of Judicature at Allahabad

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M/S Jindal Strips Ltd. v. The Commissioner Of Trade Tax, U.P. Lucknow - SALES/TRADE TAX REVISION No. 257 of 1996 [2005] RD-AH 197 (18 January 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court no. 55-

Sales Tax Revision no. 257 of 1996.

M/S Jindal Strips Ltd., Thane. ... Revisionist.

Vs

Commissioner of Sales 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 dated 16..11.1995 relating to assessment year 1994-95 by which, the Tribunal has confirmed the penalty levied under Section 15-A (1) (o) of the Act.

The brief facts of the case are that on 23.10.1994, one Chassis was being imported to Sahibabad, Ghaziabad and at the check post, it was found that there was no declaration Certificate as contemplated under Section 28-A and accordingly Vehicle was seized and subsequently released on furnishing of security.  A penalty proceeding under Section 15-A (1) (o) was initiated.  Applicant filed reply which was accepted and a sum of Rs.2,00,000/- towards penalty was levied.  First Appeal filed by the applicant was rejected.  Tribunal rejected the Second Appeal.

Heard Counsel for the parties.

Learned Counsel for the applicant submitted that the said Chassis bearing Chassis no. 360 044 HVQ 118137 Engine no. 697- D-24 HVQ 124177 was purchased by M/S Jindal Strips Ltd.,  Village Vasind Tal Shahpur, District Thane (applicant) against Invoice no. 504 dated 11.10.1994 and the said Chasis was going to M/S Airtech Private Limited, Sahibabad, Ghaziabad for construction of Dumper and in respect of the said Chassis, temporary registration no. MH-12-820 was obtained from Registering Authority for Poona to Delhi. He further submitted that after construction of Dumper on the Chassis, Vehicle had gone to Thane, Bombay and was permanently registered under the Bombay Motor Vehicle Tax Act, 1958 with registration no. MH-04-P-6699 on 16.3.1995, in which, same Engine number, Chassis number are mentioned.  It has also been submitted that the tax had also been paid in respect of Vehicle.  Registration certificate and certificate of taxation have been enclosed as Annexure-19 to the revision petition  which have also been filed before Authorities below which are referred in the order.  He submitted that neither M/S Jindal Strips Ltd.,  Vill. Vasind Tal Shahpur, District Thane nor M/S Airtech Private Limited, Sahibabad, Ghaziabad were engaged in the business of buying and selling of Vehicle and the Vehicle was not being imported for the purposes of sale and therefore, provision of Section 28-A was not applicable and inasmuch as,  there was no attempt to evade tax.  He further submitted that at the time of inspection of the Chassis, sale invoice issued by M/S Tata Engineering and Locomotive Co. Ltd. was produced and two Purchas were also produced to show that the Vehicle was going to M/S Airtech Private Limited, Sahibabad, Ghaziabad and these facts were mentioned in the seizure order which is Annexure-13 of the revision petition.  Learned Standing Counsel supported the order of Tribunal.

I have perused the order of Tribunal and the authorities below and the documents filed alongwith the revision.  Seizure order which is Annexure 13 of the revision petition shows that the sale invoice dated 11.10.1994 issued by M/S Tata Engineering and Locomotive Co. Ltd. issued in favour of M/S Jindal Strips Ltd.,  Vill. Vasind Tal Shahpur, District Thane was produced at the time of inspection and the documents also shows that the Vehicle was going to M/S Airtech Private Limited, Sahibabad, Ghaziabad.  The Vehicle was also got a temporary registration no. MH-12-820 for movement from Poone to Delhi and subsequently permanently registered under Bombay Motor Vehicle Tax Act, 1958 clearly.  The above document establishes that the Vehicle was not coming to Sahibabad, Ghaziabad for sale and it was coming for getting the Dumper constructed over it.  None of the authorities have  recorded any finding that M/S Airtech Private Limited, Sahibabad, Ghaziabad or M/S Jindal Strips Ltd.,  Vill. Vasind Tal Shahpur, District Thane were engaged in the business of buying and selling of Chassis and the said Chassis was being imported for the purposes of sale inside the State of U. P..  In the absence of such finding, in my opinion, penalty levied under Section 15-A (1) (o) was wholly unjustified.  In the case of M/S Jain Sudh Vanaspati Vs. State of U. P. 1983 U.P.T.C., 198, the Division Bench of this Court held that the goods under Section 28-A cannot be seized and the penalty under Section 15-A (1) (o) can not be levied merely because, goods was not accompanied by a declaration Form, unless there is a case of an attempt to evade tax.  The Division Bench has further held that the Section 28-A of the Act is applicable to the goods which was being imported for the purposes of business and is liable to tax inside the State of U. P.  In the case of M/S Oriental Carbon Ltd. Vs. Commissioner of Sales Tax reported in 1985 UPTC page 613, it has been held by this Court that unless a case of an attempt to evade tax is made out, penalty under Section 15-A (1) (o) of the Act can not be levied.  The Judgment of this Court has been up held by the Apex Court in the case of CST  Vs. M/S Oriental Carbon Vs. reported in 1997 NTN, 105.  On the facts and circumstances of the case, in my view, inasmuch as, the Chassis sought to be imported inside the State of U. P. was not meant for business and the Chassis was not meant for sale inside the State of U. P. and accordingly was not liable to tax and as such no case of an attempt to evade tax has been made out,

In the result, revision is allowed.  Order of Tribunal is set aside and the penalty levied under Section 15-A (1)(o) of the Act is quashed

Dt:18.1.05.

MZ/-


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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