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Kaushilya Metals, Mirzapur Versus Commissioner, Trade Tax U.P., Lucknow

Imposition of penalty - detention of goods - clandestine removal - extra goods found loaded in the truck, apart from what was evident from the records - Held that: - The fact, clearly shows that the authorities themselves have found the goods covered by bill No.24 dated 22.4.2002 and form-31 No.F/JJ-0952524 were being imported in accordance with law. No discrepancy or breach of any of the provisions of the Act, was found. Under the circumstances, there was no occasion to levy penalty under Secti .....

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sessee 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 transport of extra found metal waste by the assessee in contravention of the provisions of Section 28-A of the Act. Under .....

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REVISION No. 464 of 2006 - Dated:- 18-11-2016 - Hon'ble Surya Prakash Kesarwani,J. For the Applicant : Kunwar Saksena,Suyash Agarwal For the Opposite Party :- S.C. ORDER Heard Sri M.M. Rai, learned counsel for the applicant-revisionist and Sri B.K. Pandey, learned standing counsel for the respondent. This revision has been filed challenging the order dated 10.3.2006 passed by the Member, Commercial Tax Tribunal, Varanasi Bench-V, Varanasi in Second Appeal No.515 of 2003 for the Assessment Ye .....

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roduced 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 t .....

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', Mumbai under Bill No.24 dated 22.4.2002 for ₹ 1,63,531.36 including Central Sales Tax @ 4% amounting to ₹ 6289.66. The aforesaid goods were being brought through Truck No. MHO-4H/8721 accompanied with the aforesaid bill and Form-31 No.F/JJ-0952524. When the goods reached at Drummondganj, Mirzapur on 3.5.2002, the person incharge of the vehicle produced the aforesaid Form-31, bill and GR No.015941 dated 22.4.2002 before the Check Post Authority. On physical verification, the au .....

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manded, which was deposited by the transporter and the goods were released to him. 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 .....

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l as the extra found goods. Aggrieved with this order, the assessee filed First Appeal No.1089 of 2002 before the Joint Commissioner (Appeal)- IV, Commercial Tax, Allahabad, which was dismissed by order dated 28.6.2003. Aggrieved with the order of the First Appellate Authority, the assessee preferred Second Appeal No.515 of 2003 before the Member, Commercial Tax Tribunal, Varanasi Bench-V, Varanasi, which was also dismissed by the impugned order dated 10.3.2006. Aggrieved with this order, the as .....

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ot only with respect to the extra goods found, but also with respect to the goods which were covered by proper and genuine documents, namely, Form-31 bill and GR No.015941 dated 22.4.2002, and which were not even seized. The authorities and the Tribunal have totally ignored the fact that merely the extra found goods were seized 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 .....

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fully considered the submissions of the learned counsels for the parties. The facts as aforenoted, clearly reveals that the applicant-assessee has imported 6,807 Kgs. metal waste filled in 99 bags from 'Quality Enterprises', Mumbai, under bill No.24 dated 22.4.2002 accompanied with Form-31 No.F/JJ-0952524. and GR of the transporter and were being transported in truck No. MHO-4H-8721. In his reply to the show cause notice for seizure of the excess found goods, the assessee took clear stan .....

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position of penalty by the assessing authority on the quantity covered by the aforesaid bill and form-31, proves arbitrary approach adopted by him with only reason to cause harassment to the assessee. The approach of the first appellate authority and the Tribunal were also not different. They also acted in the same manner. The Tribunal even being the last fact finding authority has completely failed to discharge the mandatory obligation under Rule 68(5) of the U.P. Trade Tax Rules. Despite consi .....

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isfied 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, by way of penalty, in addition to the tax, if any, payable by him, penalty for a sum not exceeding forty percent of the value of goods involved or three times of the tax leviable on such goods .....

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