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1988 (8) TMI 367 - SUPREME COURTWhether excess realisation was of sales or purchase tax thus incurring penal liability under sub-clause (qq) of sub-section (1) of section 15-A or it was excess realisation of price over and above that the assessee was entitled to charge from its customers under Notification No. 4602 of the Essential Commodities Act? Held that:- Appeal dismissed. Penalty can be levied or is leviable for realisation of excess of tax legally payable and not for contravention of section 8-A(2)(b). Realisation of excess amount is not impermissible but what is not Permissible is realisation of excess amount as tax. The High Court noted that the assessee did not act fairly in this case. By way of price it realised from its customers more than what it was entitled to under Notification No. 4602 but in order to avoid any consequences under the Essential Commodities Act such as suspension or cancellation of its licence, etc., the excess realisation was shown as amount covered by Explanation II of the notification. On these facts the High Court found that the provisions of section 15-A(1)(qq) were not applicable. It has to be borne in mind that the imposition of a penalty under the Act is quasi-criminal and unless strictly proved, the assessee is not liable for the same. There is no scope for interference under article 136 of the Constitution.
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