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Cst v. K.A.&M.Stares - SALES/TRADE TAX REVISION No. 993 of 1993  RD-AH 2609 (9 September 2005)
SALES TAX REVISION NO.993 OF 1993
The Commissioner, Sales Tax U.P. ....Applicant
S/S Khera Agro and Machinery Stores, Pilibhit. ....Opp.party
Hon'ble Rajes Kumar, J.
Present revision under Section 11 of U.P. Sales Tax Act (hereinafter referred to as "Act") is directed against the order of Tribunal dated 16.04.1993 for the assessment year 1988-89.
Dealer opposite party (hereinafter referred to as "Dealer") was found importing sugar cane crusher and made declaration in Form 35 that it was agriculture implement. However, check post officer had not accepted the claim of the dealer and seized the goods in the absence of declaration form as contemplated under section 28-A of the Act. In pursuance of the seizure of the goods, assessing authority had also levied the penalty under section 15-A (1) (o) of the Act. Dealer filed appeal before the Assistant Commissioner (Judicial), Trade Tax, Bareilly. Assistant Commissioner (Judicial) Trade Tax, Bareilly had deleted the penalty. Commissioner of Sales Tax filed appeal against the order of Assistant Commissioner (Judicial) Trade Tax, Bareilly, which has been dismissed.
Heard learned Standing Counsel. No one appears on behalf of the dealer inspite of the service of notice.
Learned Standing Counsel submitted that the Tribunal has accepted that the sugar cane crusher which has been imported was power driven but still held being an agriculture implement it is exempted from tax under the notification no.ST-II-8305/X-11(9)/78-U.P.Act XV/48-Order-86, dated 30.06.1986. Learned Standing Counsel submitted that this view of the Tribunal is erroneous.
I have perused the order of Tribunal and the authorities below.
Tribunal has confirmed the deletion of penalty under section 15-A (1)(o) of the Act on the ground that sugar cane crusher, which was imported was exempted from tax being an agriculture implement and the provisions of section 28-A of the Act was not applicable. Tribunal held that sugar cane crusher which has been imported by the dealer was power driven but under the notification it does not make any difference whether it is animal driven or power driven and treated it exempted under the notification. This view of the Tribunal is erroneous. Notification no. ST-II-8305/X-11(9)/78-U.P.ActXV/48-Order-86, dated 30.06.1986 exempts sugar cane crusher which is worked by human or animal and not by power driven.
Notification no. ST-II-8305/X-11(9)/78-U.P.Act XV/48-Order-86, dated 30.06.1986 reads as follows:
"In exercise of the power under clause (a) of section 4 of the Uttar Pradesh Sales Tax Act, 1948 (U.P.Act No.XV of 1948), read with section 21 of the Uttar Pradesh General Clauses Act, 1904 (U.P.Act No.1 of 1904), the Governor is pleased to make, the following amendment in Government Notification No.ST-2-7038/X(23)-83-U.P.Act XV/48-Order-85, dated January 31, 1985;
In the Schedule to the aforesaid notification, for the existing entries in column 2 against serial No.1, the following shall be substituted:-
1 2 3
1. Agricultural implements and parts, accessories and attachments thereof, as per details given below:A:Agriculture implement worked by human or animal power. Hand hoe or Khurpa.................Sugar-cane crusher, Cane juice boiling pan and Grating, Roller and Crow-bar.
Since the Tribunal has not considered the other aspect of the matter, case is remanded back to the Tribunal to consider the other aspect of the matter.
In the result, revision is allowed. Order of the Tribunal dated 16.04.1993 in appeal no.741 of 1990, CST Vs. S/S Khera Agro and Machinery Stores is seta side and the matter is remanded back to the Tribunal to decide the appeal afresh.
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