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Judgment
Rajes Kumar, J.—These two revisions u/s II of U.P. Trade Tax Act (hereinafter referred to as "Act") are directed against the order of Tribunal dated 24th July, 1999 the assessment years 1987-88 and 88-89 both under the Central Sales Tax Act.
By the impugned order Tribunal has deleted the penalty levied u/s 10-A of the Act for the alleged default u/s 10(d) of the Central Sales Tax Act (hereinafter referred to as "Central Act").
Brief facts of the case are that the dealer/opposite party (hereinafter referred to as "Dealer") applied for registration under Central Sales Tax Act for the manufacturing of ice. During the proceedings for grant of registration statement of Sri Ramesh Chandra was recorded on 12.07.1987 in which he has categorically stated that he would sell the ice after manufacturing ice in the cold storage and only for the purpose of the manufacturing registration was required. The registration was granted by the assessing authority on 03.07.1987 w.e.f. 08.06.1987 for the manufacturing of ice and the dealer was allowed to purchase compressor machines, ice plant, motors, electrical goods, pipe and pipe fitting, generator, wood, fiber glass and thermocol etc. In the assessment year 1987-88 applicant had purchased various items for Rs. 6,91,987/- against Form "C" at concessional rate of tax. The details of such goods have not been mentioned in the order. Such goods have been admittedly used in the construction of cold storage. Assessing authority initiated the penalty proceedings and issued show cause notice on the ground that the registration was granted for the manufacturing of ice while the goods purchased against Form "C" were used in the cold storage and thus there was violation of Section 10(d) of the Central Act. Dealer filed reply to the show cause notice, which was not accepted and a sum of Rs. 1,03,797.45p. was levied towards penalty. First appeal filed by the dealer was rejected. Dealer filed second appeals before the Tribunal, which has been allowed and the penalty order has been set aside. Tribunal held that the dealer has explained that due to the reasons that it could not get non-sally water and the salty water was not suitable for the manufacturing of ice and could not get water from Agra Water Works, therefore, it was beyond the control to manufacture ice. Tribunal held that for the establishment of ice factory and cold storage machines are almost common, hence, the imported goods have been used in the construction of cold storage and it was beyond the control to manufacture ice and accordingly, held that on the facts stated above, it can not be said that there was a default u/s 10A of the Act.
For the assessment year 1988-89 dealer had purchased wood for Rs. 87,288/- against Form "C" and admittedly used such wood in the construction of cold storage. Assessing authority issued notice u/s 10-A of the Act for the alleged default of Section 10(d) of the Central Act on the ground that such wood were used in the construction of the cold storage and not in the construction of ice factory. Dealer filed reply. On the consideration of reply, notice u/s 10-A of the Act was vacated and the proceeding was dropped. Deputy Commissioner (Executive) initiated the proceeding u/s 10-B of the Act to revise the said order dated 15.03.1997 vacating the notice u/s 10-A of the Act on the ground that the order was illegal and improper. Deputy Commissioner (Executive) was of the view that the registration was granted for the manufacturing of ice while wood purchased against Form "C" used in the cold storage and the ice factory was never constructed and no manufacturing of ice was carried on. Dealer filed reply to the show cause notice stating therein that clue to the reason that he could not get non-salty water and the salty water was not suitable for the manufacturing of ice, the manufacturing of ice was beyond control. Deputy Commissioner (Executive), however, has not accepted the plea of the dealer and levied the penalty at Rs. 17,283/-. According to Deputy Commissioner (Executive) the rate of tax was 12% + 1 % surcharge, which comes to 13.1% and one and half times of penalty to the extent of 19.8% was levied.
Being aggrieved by the order of the Deputy Commissioner (Executive) dated 13.08.1998 dealer filed second appeal before the Tribunal. Tribunal vide impugned order dated 29.12.1998 allowed the appeal and set aside the order of Deputy Commissioner (Executive). Tribunal held that the name of the firm was M/s Gomit Ice and Cold Storage Private Limited and at the time of survey in the survey report in the column of goods for sale, ice and cold storage business had been disclosed and thus, if the wood have been used in the construction of cold storage and not in the ice plant it can not be said to be a default u/s 10(d) of the Central Act. Being aggrieved by the order of the Tribunal, present revision has been filed.
Heard Learned Standing Counsel and Sri R.R. Agrawal, learned Counsel for the dealer.
Learned Standing Counsel submitted that the dealer was granted registration under Central Sales Tax Act for the manufacturing of ice and, therefore, it was entitled to purchase various items at concessional rate, which were required for the manufacturing of ice only. He submitted that the dealer had only constructed cold storage and had not constructed ice factory and the manufacturing of ice has never been carried on. He submitted that admittedly the goods which have been purchased against Form "C" in the assessment years 1987-88 and 88-89 have been used in the construction of the cold storage as per the dealer''s own admission. Thus, there was a clear violation of Section 10(d) of the Central Act.
Learned Counsel for the dealer submitted that the machines for the cold storage and ice factory are common. He submitted that the dealer has explained that why the manufacturing of ice could not be started, which was beyond his control. He submitted that there was a reasonable cause for using the material imported from outside the State of U.P. in the construction of the cold storage instead of using in the construction of the ice factory and, therefore, penalty has rightly been deleted by the Tribunal. He submitted that the case of the applicant is covered by the decision of this Court in the case of Raghubir Cold Storage, Mainpuri v. Commissioner of Sales Tax reported in 1995 UPTC, 1104. He further submitted that for the levy of penalty deliberate contravention of the provisions of law is necessary and in support of his contention he relied upon the decision of the Apex Court in the case of Commercial Taxes Officer Vs. Foreign Import and Export Association, , Learned Standing Counsel further submitted that the dealer has filed the reply in the year 1998 and till 1998 even machines relating to the ice factory could not be installed, as stated in the reply.
Having heard the learned Counsel for the parties, 1 have perused the order of Tribunal and the authorities below and the documents filed alongwith counter affidavit and the supplementary affidavit.
It may be mentioned here that the cases cited by learned Counsel for the dealer do not apply in the present case and are clearly distinguishable.
In the case of Commercial Taxes Officer v. Foreign Import & Export Association (Supra) dealer was carrying on the business of dyeing raw wool, had imported material from outside the State of U.P. against Form "C" and such materials have been used in the dyeing of raw wool belonging to other dealers carried on job work basis. On the facts of the case, court below and Rajasthan High Court has held that the dealer can not be said to have acted deliberately in contravention of the law without any reasonable excuse. This view of the High Court has been affirmed by the Apex Court.
In the case of Raghubir Cold Storage, Mainpuri v. Commissioner of Sales Tax (Surpa) dealer was granted registration certificate by the assessing authority for the purchase of building and other materials for construction of cold storage. Dealer accordingly, purchased materials from outside the State of U.P. against Form "C" at concessional rate of tax and used in the construction of cold storage. Assessing authority initiated the penalty proceedings on the ground that the dealer was not producing any goods for sale and was not entitled to purchase the aforesaid items at concessional rate. Penalty has been upheld by the Tribunal. This Court however, held that although there was a default within the meaning of Section 10(d) of the Central Act inasmuch as the dealer was not to manufacture any goods for sale, yet it purchased the materials and used them for the construction of the cold storage. But it was led to this default by the belief that it can do so and for which it found support from the action of the assessing authority in granting it registration certificate knowing full well that the dealer is establishing only a cold storage. From these facts, it has been held that there was reasonable cause for the default.
In the present case, such situation does not exist, In the present case, registration was sought and granted for the manufacturing of ice. Admittedly, ice factory had not been established and the manufacturing of ice had not been carried on. Thus, no case of reasonable excuse has been made out.
Admittedly, dealer was granted registration u/s 7 of the Act for the manufacturing of ice. Under the registration certificate, dealer was entitled to purchase the goods from outside the State of U.P. at concessional rate of tax required for use in the ice factory for the manufacturing of ice. Admittedly, the goods, which have been imported from outside the State of U.P. in the years under consideration used in the construction of cold storage and have not been used in the construction of ice factory. As per dealer''s own admission ice factory had never been constructed and manufacturing of ice had not been carried on. Thus, the dealer has used the imported goods for the purpose of other than for which it was granted registration and for the purposes, which did not involve manufacturing of ice. Dealer has not made out any case of reasonable excuse. The explanation of the dealer that since water was salty, it was not possible to manufacture ice, does not amount to reasonable excuse. In the circumstances, in my opinion, there was violation of Clause (d) of Section 10 of the Central Act and thus, dealer is liable for penalty. However, on the facts and circumstances, Tribunal is directed to levy minimum penalty.
In the result, both the revisions are allowed. Order of the Tribunal is set aside and Tribunal is directed to levy minimum penalty and pass appropriate orders.