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2008 (8) TMI 854 - ALLAHABAD HIGH COURTPenalty under section 4B(5) of the U.P. Trade Tax Act, 1948 - Whether the Trade Tax Tribunal was legally justified to set aside the penalty order passed by the assessing authority under section 4B(5) of the U.P. Trade Tax Act, 1948 despite the fact that the dealer had clearly acted in contravention of the provisions contained in section 4B of the Act? Held that:- The amount of penalty shall not be less then the difference between the amount of the tax on the sale or purchase of such goods payable under the provisions of the Act and the amount of tax payable at concessional rate under section 4B, where the goods are purchased after paying a tax at concessional rate. The intention is to make good at least the loss of tax by providing the minimum penalty. It does not grant any exemption to such dealer holding recognition certificate to dispose of such raw material purchased at concessional rate of tax or without payment of tax in any manner. The raw material has necessarily to be used in the manufacture of the specified goods. On the unused portion of the raw material, may be waste for a dealer, it has to pay the tax by way of penalty as provided for under sub-section (5) of section 4B. It may be in such cases the minimum one. In view of the above discussions, the order of the Tribunal is indefensible and is liable to be set aside so far as it holds that no penalty can be levied on the glass sheet raw material amounting to ₹ 2,43,277.10. On the facts of the present case, the interest of justice will be served by levying the minimum penalty as per provisions of the Act on the said amount. For the purposes of calculation of penalty amount only, the matter is remitted back to the Tribunal.
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