TMI Blog2015 (6) TMI 738X X X X Extracts X X X X X X X X Extracts X X X X ..... ion where a dealer, who has a recognition certificate, purchases goods either on concessional rate or without paying any tax and if he uses goods for a purpose other than that for which recognition certificate is granted or has otherwise disposed of the goods then he would be liable to be proceeded under Section 4-B(5) of the Act. The authorities has invoked Section 4-B(5) and imposed penalty in the matter. Tribunal which is a final fact finding authority as only on a substantial question of law, a revision can be successfully premised under the Act. The fact finding authority has found that neither is there finding of the authority that the assessee was caught selling packing material or raw material in the same form and condition in w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness of manufacturing glass bottles, inter alia, sold packing trays (corrugated boxes) to the tune of ₹ 9,98,561.21. The assessee had purchased these packing materials on the strength of declaration under Section 3-B of the U.P. Trade Tax Act, 1948 (hereinafter referred to as the Act ). It was found that the sale of packing material in the same form and condition violated Section 4-B(5) of the Act. Accordingly, penalty equal to twice at the rate of 10%, namely, ₹ 1,99,712/- was imposed by the Assessing Officer, vide Annexure -1. The appeal before the 1st Appellate Authority was unsuccessful, but the Tribunal in further appeal by Annexure-5 judgment dated 10.09.2009 allowed the appeal filed by the assessee on the following reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no violation of Section 4-B(5) of Trade Tax Act? 3. We heard the learned counsel for the State/revisionist Shri H.M. Bhatia and Shri Mohit Maulekhi, learned counsel on behalf of the respondent. 4. Section 3-B of the Act reads as follows :- 3-B. Liability on issuing false certificates, etc.- Notwithstanding anything to the contrary contained elsewhere in this Act, and without prejudice to the provisions of Sections 14 and 15-A, a person who issue a false or wrong certificate or declaration, prescribed under any provision of this Act or the Rules framed thereunder, to another person by reason of which a tax leviable under this Act on the transaction of purchase or sale made with or by such other person ceases to be leviab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nner and which such period as may be prescribed, for the grant of a recognition certificate in respect thereof; and if the applicant satisfies such requirement including requirement of depositing late fee and conditions as may be prescribed, the assessing authority shall grant to him in respect of such goods a recognition certificate in such form, and subject to such conditions, as may be prescribed. Explanation.- For the purposes of this sub-section,- (a) goods required for use in manufacture shall mean raw materials, processing materials, machinery, plant, equipment, consumable stores, spare parts, accessories, components, sub-assemblies, fuels or lubricants; and (b) notified goods means such goods as may, from time to time, be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certificate is granted or has otherwise disposed of the goods then he would be liable to be proceeded under Section 4-B(5) of the Act. The authorities has invoked Section 4-B(5) and imposed penalty in the matter. The learned counsel for the revisionist would contend that the orders of the Assessing Authority and the 1st Appellate Authority were justified for the reason that it is a case where the respondent/assessee had purchased the packing material (corrugated boxes) on the strength of the recognition certificate and on declaration under Section 3-B and purportedly for using the same for packing the goods manufactured by it, but it has sold the packing material separately and in the condition in which it was purchased. It was neither used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tually sold packing material separately in the form and condition in which it was purchased under Form 3-B. 9. Though the revisionist has a case in the revision memo that this finding was without any material, when we asked whether there is anything to show that the packing material was not used or the goods were sold without their packing material being used for the purpose of packing, the learned counsel for the revisionist was not able to show any material as such. What is material referred to is the fact that the packing material is returned back and it is separately accounted in the ledger. From the said circumstances alone, we cannot find basis for proceeding under Section 4-B(5) as the issue is, whether the packing material which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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