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TMI Blog2009 (3) TMI 963X X X X Extracts X X X X X X X X Extracts X X X X ..... the principles of law that the purpose of imposition of penalty on the manufacturer of the notified goods on the stock transfer of the manufactured goods, produced out of the raw material purchased against form IIIB is only to ensure that the tax has been paid either under the U.P. Trade Tax Act or under the Central Sales Tax Act or else if it is exported. However, since the total exemption has been granted to the applicant under section 4A of U.P. Trade Tax Act, hence neither any tax was payable by the applicant within U.P. nor under Central Sales Tax Act, hence the question of payment of any penalty does not arise even if such stock transfers are made in the contravention of section 4B(2) of the Act by making the stock transfer? 2.. Whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st form IIIB as having been utilised in packing of the notified goods which were transferred by way of stock transfer by completely overlooking the paper book and the written arguments filed before the Trade Tax Tribunal? 6.. Whether under certain contingencies on the sale of the goods, no tax is payable by a dealer on the sale of notified goods, then no penalty could be imposed legally on the dealer for the violation of section 4B(2) merely because instead of selling the said goods within U.P. or in the course of inter-State trade or commerce by availing of the exemption (no tax is paid) he has made the stock transfers on which also no tax is being paid? 7.. Whether even assuming without admitting that any penalty could have been legally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the assessing authority, the assessee filed an appeal under section 9 of the Act and the Deputy Commissioner (Appeals) by its order dated March 12, 1998 has partly allowed the appeal for the assessment year 1995-96 and has quashed the penalty imposed upon the assessee by order dated March 12, 1998. The Department being aggrieved by the said order, filed a second appeal under section 10 of the U.P. Trade Tax Act. While hearing and disposing the appeal, the first appellate authority has recorded a finding of fact that no tax was levied by the assessee for this period because the stock, which was transferred outside the State of U.P. was 39 per cent of the total production of the assessee and the packing material, which had been purch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of oil from two sources but that does not make any difference as it having been established that oil extracted was more the burden on assessee stood discharged to establish as to what was the oil actually sold in the State. Secondly, learned counsel has relied on a decision in Commissioner of Sales Tax, U.P. v. Jetha Nand Puran Chand, Banda reported in [1988] UPTC 85 wherein this court came to the conclusion that "if the sale outside the State of U.P. can be traced to goods in respect of which no concession has been availed by the dealer, no penalty under section 4B(6) can be levied." Thirdly, learned counsel has relied on another decision of this court as Vam Organic Chemicals Ltd., Moradabad v. Commissioner of Sales Tax, Lucknow repor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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