Avadh Mill Stores vs Commissioner of Trade Tax, U.P., Lucknow

The applicant is a partnership concern duly registered under the U. P. Sales Tax Act. The applicant booked 62 bundles of 10" D. S. Rubber Rolls from the consignor M/s. Parkman (India) Polymer Industries, Thane. The said goods was cleared by the Excise Department and form G.P.I was issued. The said goods was handed Over to the Transport Company, namely, Vijay Laxmi Transport Company along with the relevant documents, delivery challan, form No. 31, etc. When the goods reached Mohan Nagar Check Post, Ghaziabad in the State of U. P., the documents were shown and, at that stage, upon checking, it was found that instead of 60 bundles of 10" D. S. Rubber Rolls, the truck was loaded with 20 bundles of 10" D. S. Rubber Rolls and 42 bundles of 5" D. S. Rubber Rolls. The applicant, on finding that the consignor had sent wrong bundles of 5" D. S. Rubber Rolls, requested the authorities to only release the 10" Bundles of D. S. Rubber Rolls and permit the applicant to sent back the 5" D. S. Rubber Rolls to the consignor. The check post authorities expressed their inability to release the 10" D. S. Rubber Rolls and demanded full security on the value of goods including the value of goods of 5" D. S. Rubber Rolls. Since the applicant was in dire necessity of the goods, a security of Rs. 37, 127/ was deposited and the goods were released.

It has come on record that the 5" D. S. Rubber Rolls weresent back from the check post itself through G.R. No. 798930 through Vijay Laxmi Transport Company on the same day when the goods were released by the Sales Tax Authorities. It has also come on record that the consignor, on coming to know that wrong bundles had been sent to the applicant due to their oversight, immediately issued a certificate on the very next day stating therein that wrong bundles had been sent to the applicant by mistake.

That all these facts were brought to the notice of the Assessing Authority in spite of which, the Assessing Authority issued an order of penalty converting the security amount as penalty. The applicant, being aggrieved by the said order, preferred an appeal before the Assistant Commissioner (Judicial) Sales Tax, Lucknow which was also dismissed. The applicant, thereafter, filed an appeal before the Tribunal which was also dismissed. The Tribunal held that the certificate issued by the consignor cannot be relied upon and that it does not inspire any confidence. The Tribunal, as well as, the lower authorities failed to consider the fact that wrong goods was sent by the consignor which was sent back from the check post itself on the same day when the said goods was released by the Sales Tax Authorities.

Heard Sri P. Agarwal, the learned counsel for the applicant and Sri Sanjiv Shankhdhar, the learned Additional Chief Standing Counsel for the department.

Penalty has been imposed under Section 15A(1)(o) of the U. P. Sales Tax Act for violation of the provisions of Section 28A of the U. P. Sales Tax Act. For facility, the provisions of Section 15A(1)(o) of the U. P. Sales Tax Act is quoted hereunder.

"15A. Penalties in certain cases. (1) If the Assessing Authority is satisfied that any dealer or other person

(a)..........

(o) imports or transports, or attempts to import or transport, or abets the import or transport of any goods in contravention of the provisions of Section 28A; it may after such enquiry, if any, as it may deem necessary, direct that such dealer or person shall pay, by way of penalty, in addition to the tax, if any payable by him.

The aforesaid provision provides that where a dealer or a person attempts to import or transport any goods in contravention of the provisions of Section 28A of the Act, in that event, a penalty could be imposed.

In M/s. Prakash Pipes and Industries, New Delhi v. Commissioner of Sales Tax, U. P., Lucknow, 1997 UPTC 283, the goods were imported without furnishing Form 31 which was in contravention to the provision of Section 28A of the Act, the Court held that the default committed by the dealer, was not with the intention or attempt to evade the tax, and therefore, held that the penalty could not be levied.

In M/s. Transport Traders Organisation Bombay v. Commissioner of Trade Tax, 1999 UPTC 577, the Court held that even though there was a default in compliance of Section 28A of the Act, there was no intention to evade the tax, and therefore, in a case of a simple default, no penalty could be imposed.

In M/s. Ureka Polymers Ltd., Noida v. Trade Tax Tribunal, Bench3, Ghaziabad, STI 2004 Alld. High Court 265, it was found that the invoice mentioned different description of goods by mistake on the part of the consignee, the Court held that in the facts and circumstances of the case, no case of attempt to evade the payment of tax was made out against the dealer and that the levy of penalty under Section 15A(1)(o) of the Act was unjustified.

Section 28A prescribes the condition to be fulfilled by a person, who imports the goods from outside the State of Uttar Pradesh. Subsection (3) requires that the person concerned shall not obtain or cause to be obtained delivery thereof unless he furnishes or causes to be furnished to such officer, as may be authorised in this behalf, a declaration in the prescribed form duly filled in and signed by him for endorsement by such officer. Subsection (6) of Section 28A confers the power of seizure not for any technical default but only where such goods was being transported in an attempt to evade payment of tax, in which case, the seizure of goods could be effected and, subsequently penalty under Section 15A(1)(o) of the Act could be levied only if it was found that there was an attempt to evade the payment of tax.

In the present case, upon checking of the goods at the check post, it was found that wrong bundles had been sent by the consignor. The applicant requested for the release of the goods winch he had booked and for the return of the goods back to the consignor which had wrongly been sent. The authorities has also lost sight of fact that when the goods were released, the applicant had returned the 5" D. S. Rubber Rolls back to consignor in the same transport vehicle from the check post itself. The applicant had also produced a certificate of the consignor indicating that wrong goods had been sent by mistake. Needless to say that the total number of the bundles were 62, out of which, 42 bundles was of another description. If there was any intention of the applicant to evade the tax, the said goods would not have been returned back to the consignor.

In view of the aforesaid facts and circumstances of the case that has been placed on the record, this Court is of the opinion that there is no willful default on the part of the applicant or attempt to evade the payment of tax.

For the reasons stated aforesaid, the revision is allowed and the order passed by the Trade Tax Tribunal, the appellate order and the order passed by the Assessing Authority under Section 15A(1)(o) of the U. P. Trade Tax Act are all quashed. The Assessing Authorities are directed to refund the amount of penalty to the applicant within three months from the date of the production of a certified copy of this order.

Revision allowed.