TMI Blog2019 (5) TMI 1221X X X X Extracts X X X X X X X X Extracts X X X X ..... , therefore, the rate of tax on old, discarded and unserviceable items will be 4%. Accordingly the order passed by the authorities below and the order of the Tribunal needs to correct. Furnishing of declaration certificate - HELD THAT:- Tribunal has not justified in rejecting the claim of the applicant by recording a finding that the applicant do not fulfill the condition of Section 12B of the U.P. Trade Tax Act. From perusal of the contents of Section 12B of the Act, it is crystal clear that the said additional evidence can be placed or produced by the assessee, whether oral or documentary before the appellate authority or 'Tribunal' which the assessing authority had wrongly refused to admit or which after exercise of due dil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a. Whether on the facts and circumstances of the instant case, the Member Tribunal was legally justified in imposing tax on the turnover of old, discarded materials (Stores) at the rate of 10% while the same were covered by Notification No.1225 dated 31.03.1992? b. Whether on the facts and circumstances of the instant case the Tribunal was legally justified in not allowing the benefit of declaration certificate of C.S.D. filed before him along with application under Section 12B while the same was received after filling the second appeal before the Tribunal? 4. The brief facts of the case are that the applicant carried on business of manufacture of food products namely Deshi Ghee, Complan, Glucon-D, Farex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the manufacture and importer was 8%. The rate of tax so mentioned at serial no.32 of the notification dated 07.09.1981 was amended vide the notification No.1225 dated 31.03.1992 and the said Entry at serial no.32 in column 4 for the word and figure '6%', the words and figure '4%' was substituted with effect from 1st April, 1992. 11. The Entry at serial no.32 in notification dated 7th September, 1981 and amended notification dated 31st March, 1992 reads as follows: [14] STII5785/ X10( 1)80UP Act XV/48Order81, dt. 7.9.1981 32. Old, discarded, unserviceable or obsolete machinery, stores or vehicles including waste products except cinder, coal ash and such ite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by recording a finding that the applicant do not fulfill the condition of Section 12B of the U.P. Trade Tax Act. Section 12B of the U.P. Trade Tax Act reads as follows: 12B. Additional evidence on appeal The assessee shall not be entitled to produce additional evidence, whether oral or documentary, [before the Appellate Authority or the Tribunal except] where the evidence sought to be adduced is evidence, which the Assessing Authority had wrongly refused to admit or which after exercise of due diligence was not within his knowledge or could not be produced by him before the Assessing Authority, and in every such case, upon the additional evidence being taken on record, reasonable opportunity for challenge or rebut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been issued by the CSD canteen after a gap of about four years from the date of transaction which was taken place before 31st March, 1998, hence in my opinion, the rejection of the claim of the applicant/revisionist is unjustified. 19. In view of the aforesaid both the above referred questions are decided in favour of the applicant/revisionist. 20. The matter is remitted to the Tribunal to pass appropriate order after considering the observation made hereinabove. The Tribunal will pass an order under Section 11(8) of the U.P. Trade Tax Act preferably within a period of three months from the date of production of the certified copy of this order. 21. With the above observation, the revision is di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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