TMI Blog2014 (5) TMI 686X X X X Extracts X X X X X X X X Extracts X X X X ..... ot cover that item, but knowing fully well that it is not, nevertheless contends that it is covered - What is required plainly u/s 10(B) is knowledge that the item is not covered by the certificate and the representation that it is covered by the certificate. The Revenue does not deny the fact that the items purchased by the assessee have a close link with the business activity of the assessee - The first Appellate Authority found out that the use of furnace oil, distribution pipes, copper cable, transformer and electrical goods are purchased to facilitate generating electricity and demineralising plant used in different processes have a bearing in the assessee's business - Therefore, read in the context of the enumerated Entries in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Tribunal, relating to the assessment year 1998-99, raising the following substantial questions of law: (i) Whether the Tribunal was justified in passing order without following the guidelines framed by the Full Bench of this Court in the judgment reported in (2006) 148 STC 256 (Madras) (State of Tamil Nadu Vs. NU-Tread Tyres-C.S. Parthasarathy Chetty Vs. State of Tamil Nadu). (ii)Whether the Tribunal was justified in passing order ignoring the inclusion of items in the Certificate of Registration immediately after passing the impugned order of assessment in accordance with G.O.Ms.No.61 CT RE dated 24.01.1984? 2. The appeal arises under the Central Sales Tax Act as regards the levy of penalty under Section 10-A. The Registrati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lising plant, weighing machinery, M.S.Trolley and steel circular trolley in their business relating to manufacture of hosiery goods and for trading. Entertaining a bona fide belief that the enumerated entries in the Registration Certificate would include all incidental items too, the assessee had issued Form-C. Thus, the assessee submitted that there was no conscious violation of the Registration Certificate. 5. The Assessing Officer accepted the assessee's case to the extent of local purchase of furnace oil. However, in respect of inter-State purchases using declaration under 'C' Forms, he rejected the assessee's case; so too other items. Thus the Assessing Officer levied penalty at 150% on the differential tax. 6. Ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pite furnace oil and other items not being included in the registration certificate, the assessee could nevertheless claim concessional levy, it held that the mala fide intention of the assessee was very much seen. The fact of inclusion of these items in the registration certificate subsequent to the purchase, thus established the lack of bona fides for the purpose of levy of penalty. In the circumstances, the Tribunal held that the penalty levied by the Appellate Assistant Commissioner was reasonable and the same was confirmed. Aggrieved by this, the present revision has been filed by the assessee. 8. Learned counsel appearing for the assessee drew our attention to the Circular issued by the Special Commissioner and Commissioner of Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainly under section 10(b) is knowledge that the item is not covered by the certificate and the representation that it is covered by the certificate. This Court observed: Before a penalty can be imposed, the circumstances established must reasonably point to the conclusion that the assessee concerned has consciously committed the acts or omissions which go to constitute the offence and the burden would be on the department to prove the existence of such circumstances. Thus, in a proceeding for levy of penalty under Section 10-A the department must prove the existence of facts and circumstances constituting the offence in question. This Court further observed: If the registered dealer honestly believes that any particular goods are embrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... generating electricity and demineralising plant used in the dyeing process, circular trolley, M.S. trolley, and water storage tank, in turn, have a bearing in the assessee's business. If at all there is one item which is not directly used, it would be aluminium sheets, which is used for factory roofing purposes. Thus, read in the context of the enumerated Entries in the Registration Certificate and the items in question purchased, which were subsequently incorporated in the Registration Certificate, we do agree with the submission of the assessee that they were under a bona fide impression that the enumerated Entries in the Registration Certificate would include the above items too. As pointed out in the Office letter D.Dis.Acts.Cell.IV ..... X X X X Extracts X X X X X X X X Extracts X X X X
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