TMI Blog2016 (12) TMI 695X X X X Extracts X X X X X X X X Extracts X X X X ..... ee with respect to the extra found metal waste of 2000 Kgs. - Held that: - the assessee has clearly stated that he has no concern with extra found goods and thereupon such extra found goods were seized and the same were released on deposit of security by one Subhash Chand. There is no finding in the penalty order that the extra found goods of 2000 Kgs. belong to the assessee and the same were got released by him. On the contrary, the transporter had also issued a certificate that the assessee has no concern with the aforesaid 2000 Kgs. metal scrap. This certificate was also filed before the authority. Under the circumstances, there was no evidence before the assessing authority or the first appellate authority or the Tribunal for import or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the levy of penalty in regard to the import of 6873.800 Kg. metal waste was justified when copy of goods receipt, purchase invoice/bill and Form-31was produced before the Check Post Authorities voluntary ? (ii) Whether on the facts and in the circumstances of the case, the import of extra 2000 Kg. metal waste without any documents could be treated to be an import by the applicant with a view to evade payment of tax ? (iii) Whether on the facts and in the circumstances of the case, the authorities below including the Tribunal were justified in levying penalty in regard to entire import of 8873.800 Kg. metal waste when valid documents in regard to import of 6,873.88 Kg. were produced before the authorities at the check post and no d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The case of the assessee from the very beginning is that he has no concern with the extra found metal waste and for that reason he did not get it released. However, the assessing authority issued a penalty notice under section 15-A (1) (o) of the Act, which was replied by the assessee along with an affidavit dated 8.10.2002. He again took the stand that neither he had any concern with the goods released nor he got it released nor he deposited the security and, therefore, no penalty is leviable on him with respect to the disputed goods. He further explained that the goods belonging to him, were accompanied with proper and genuine bill and form-31, as aforementioned. The assessing authority did not accept the explanation of the assessee and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ized and on estimated value thereof, the security to cover up penalty, was demanded which was neither deposited by the applicant nor he got it released. He, therefore, submits that the revision deserves to be allowed with heavy cost. Learned standing counsel supports the impugned order of the Tribunal. However, he does not dispute that merely 2000 Kgs. extra found metal waste was seized and security was demanded only in that respect and no discrepancy was found with respect to the goods covered by the bill and form-31. He also does not dispute that the applicant has taken a clear stand from the very beginning that he has no concern with extra found goods. I have carefully considered the submissions of the learned counsels for the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing, none of the authorities including the Tribunal have taken pain to address on the issues raised by the assessee. Neither the assessing authority nor the first appellate authority nor the Tribunal have recorded any finding that who got released the goods. There was no material before the authorities to impose penalty under section 15-A(1)(o) of the Act. Section 15-A (1)(o) of the Act, provides that if the assessing authorities is satisfied that any dealer or other person imports or transports, or attempts to import or transport or abets the import or transport of any goods in contravention of the provisions of Section 28-A, then it may, after such inquiry, if any, as it may deem necessary, direct that such dealer or person shall pay, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority or the first appellate authority or the Tribunal for import or transport of extra found metal waste by the assessee in contravention of the provisions of Section 28-A of the Act. Under the circumstances, with respect to those goods, no penalty could have been imposed upon the assessee. In view of the above discussions, the revision is allowed.The impugned order dated 10.3.2006 in Second Appeal No.515 of 2003 for the Assessment Year 2002-03 passed by the Member, Commercial Tax Tribunal, Varanasi Bench-V, Varanasi, is hereby set aside. The amount of penalty, if any, deposited by the assessee shall be refunded by the assessing authority within four weeks from today along with interest from the date of deposit. The revision is allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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