M.N. Refractories Private Ltd. vs Commissioner of Trade Tax

M.C. Agarwal, J.—These two revision petitions by the dealer are directed against a common order dated December 12, 1996, passed by the Trade Tax Tribunal whereby it allowed the Commissioner''s appeal Nos. 495 and 496 of 1992 for the assessment years 1987-88 and 1988-89 and setting aside the orders passed by the Deputy Commissioner (Appeals), restored the penalties levied by the assessing officer u/s 10A read with Section 10(d) of the Central Sales Tax Act.

I have heard the learned counsel for the revisionist Sri Rakesh Ranjan Agarwal and Sri U.K. Pandey, learned Standing Counsel for the respondent.

The revisionist manufactures refractories and ceramic products and uses coal in its furnaces as a raw material. It is registered under the Central Sales Tax Act and the registration certificate authorised it to import coal for use as a raw material. A part of the coal purchased by it was sold and not used in the manufacturing process and it is for this reason that proceedings for levying penalty were initiated.

u/s 10(d) of the Central Sales Tax Act, penalty is levied if a dealer after purchasing any goods for any of the purposes specified in Clause (b) or Clause (c) or Clause (d) of Sub-section (3) of Section 8 fails, without reasonable excuse, to make use of the goods for any such purposes. The assessee''s explanation was that the coal that can be used in its ovens has to be of a superior quality and of particular size to generate a high level of heat required for the manufacture of refractories and since the coal purchased by it contains coal dust and smaller pieces of coal that cannot be used in the furnaces, the quantity of coal which is not so useable is sold and the non-usability of the coal as a raw material is a reasonable cause for the sale thereof.

The assessing officer without giving any reasonable cause rejected this contention and levied penalties of Rs. 57,600 for the assessment year 1987-88 and of Rs. 36,528 for the assessment year 1988-89. On appeal, the Deputy Commissioner (Appeals) accepted the dealer''s contention that the quantity of coal sold was not useable in the ovens and, therefore, had to be sold and this was a reasonable cause. The Deputy Commissioner (Appeals), therefore, quashed the penalties. The Commissioner appealed to the Tribunal which has restored the penalties and set aside the appellate order. The Tribunal has recorded a long order, but has not reversed the finding recorded by the Deputy Commissioner (Appeals) that the quantity of goods that was sold was not useable in the ovens of the dealer and, therefore, there was a reasonable cause for not using the same. The Tribunal has upheld the penalty merely because a part of the goods had been sold. Before the Tribunal, the dealer had produced an order of the Commissioner and Director of Industries which shows that there can be up to 40 per cent of unusable coal and the same can be sold.

Penalty u/s 10(d) of the Central Sales Tax Act could be levied only if the dealer had no reasonable excuse not to use the coal for the manufacture of goods unless there is a finding that the dealer had no reasonable excuse, no penalty can be levied. The Tribunal has not recorded any such finding. The observation made by the assessing officer to this effect was perfunctory and the Deputy Commissioner (Appeals) specifically accepted the dealer''s contention. The quantity of the goods sold by the dealer was only about 13 per cent for the assessment year 1987-88 and 11 per cent in the assessing year 1988-89 of the quantity consumed. The assessing officer collected no material to show that the quantity of the coal received by the dealer did not contain any amount inferior coal or that the dealer''s contention that only specified type of coal was useable in its furnace was not correct. Therefore, the circular issued by the Commissioner and Director of Industries supported the stand of the dealer that the consignments of coal contained a certain quantity that cannot be used for purposes like that of the revisionist. The Tribunal having failed to hold that there was no reasonable excuse for the sale of coal by the dealer, there was no legal authority for reversing the order passed by the Deputy Commissioner.

These revision petitions are, therefore, allowed with costs and setting aside the Tribunal''s order dated 12th December, 1996 it is ordered that the Commissioner''s two appeals, referred to above stand dismissed.