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2020 (3) TMI 817 - HC - VAT and Sales TaxImposition of penalty u/s 4-B(5) of the U.P. Trade Tax Act, 1948 - diesel purchased against Form III-B - existence of mens-rea on the part of the applicant or not - admittedly diesel has been used in generator set for generation of electricity used for plant and machinery, used for manufacture of Khandsari namely notified goods - HELD THAT:- It is an admitted fact that the revisionist factory had no power connection and therefore had installed generator set for production of power which in turn was used to run the plant and machinery for manufacture of sugar. It has also been urged that the remaining amount of Diesel was used for maintenance and installation of machinery, which is permissible under the law. Looking into the facts and circumstances that the Revenue in exercise of power under Section 4-B of the Act, 1948 has granted recognition certificate to the revisionist for procuring Diesel Oil to be used for production of sugar and taking into consideration the judgment of this Court in the case of M/S SHREE BHAWANI PAPER MILLS LTD., M/S RAMA SHYAMA PAPERS LTD., M/S GOELS COIR FOAM (INDIA) PVT. LTD., M/S CAMPHOR AND ALLIED PRODUCTS, M/S N.P. AGRO (INDIA) INDUSTRIES LTD., M/S BHOLENATH INDUSTRIES LTD. VERSUS STATE OF U.P. AND ANOTHER [2015 (11) TMI 48 - ALLAHABAD HIGH COURT], the revisionist was entitled for the benefit under the Act, 1948. Perusal of the impugned order passed by the Tribunal clearly indicates that there was no material before the Tribunal to conclude that the excess Diesel has been diverted for private gain or that the excess quantity of Diesel Oil was utilised for "other purposes" which was different from the purpose of manufacturing sugar. Before coming to such a finding, there should have been sufficient material before the Tribunal to reach such a conclusion. In absence of any such material, such a finding cannot be recorded by the Tribunal. The matter is required to be remanded to the U.P. Trade Tax Tribunal, to pass fresh orders - revision allowed by way of remand.
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