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TMI Blog2024 (1) TMI 1115X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt dated 16.07.2013. At the time of hearing, learned counsel for the revisionist pressed common qauestion of law nos. a, b, c & d, which read as under:- "(a) Whether on the facts and in the circumstances of the case, the Learned Tribunal has committed manifest error of law by omitting to consider and appreciate the concept of mens rea as a condition precedent for imposition of penalty under section 10(b) read with Section 10-A of the Central Sales Tax Act, 1956 and the aspect of burden falling upon the revenue to prove the existence of the circumstances constituting the said offence? (b) Whether the Learned Tribunal has misconstrued the ratio of the judgement dated 20.10.2011 passed by this Hon'ble Court in TTR No. 254 of 2011 and further, failed to apply the law laid down by the Hon'ble Apex Court in the case of Commissioner of Sales Tax Vs. Sanjiv Fabrics reported in 2010 (9) SCC 630? (c) Whether on the facts and in the circumstances of the case, the Learned Tribunal has committed manifest error of law in completely overlooking te plea of Applicant that it had not falsely represented when importing the said goods, of being covered by the certificate of registratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... word "container", therefore, the revisionist had bonafidely issued the same. To elaborate his submission, he submits that since the revisionist is selling LPG gas filled in container/cylinder, therefore, the items were required for the purpose of delivery of goods and therefore, was essentially required. He further submits that vales are integral part of the container/cylinder, which prevent LPG gas from leakage. Without regulator, the LPG gas would not be released from the cylinder. PP caps are safety features, which are used the cap valve to prevent any leakage from LPG. Similarly, aluminum seal protects and prevents valves from being damaged. He further submits that these essential items are required for storage, transport and use of LPG gas filled in cylinder and therefore, the word "container", which is specifically mentioned was under a bonafide belief and trust that the same is covered under the word "container" mentioned in the registration certificate granted under the Act. In support of his submissions, he has relied upon the judgement of the Apex Court in Commissioner of Sales Tax, U.P. Vs. M/s Sanjeev Fabrics [2010 NTN (44) 69]. He further submits that in the first roun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 2004-05 to the tune of Rs. 2530506/- and for the assessment year 2007-08 to the tune of Rs. 262080/-, but no argument was raised by either of the side with regard to blue dye. In turn, the levy of penalty of blue dye is confirmed as no argument has been raised by the counsel for the revisionist. Otherwise also, blue dye cannot be said to be anyway connected or found place in the registration certificate. Therefore, 15% penalty levied upon the purchase of blue dye to be used in the mixing of kerosene is justified. 11. Now, comes to the issue which was argued by the counsel for the parties, i.e., purchase of items such as regulator, valves, PP Caps, aluminum seal, etc. The said items are being manufactured and sold separately as independent items other than the container. This Court, vide order dated 20.10.2011, had remanded the matter and while remanding the matter, the Court has observed as under:- "I have considered the rival arguments. The judgments of the Hon'ble Supreme Court and the arguments of the petitioners leads matter to the conclusion that the order impugned has not taken the element of mens-rea in consideration and in view of Hon'ble Supreme Court the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its utilization and hence, the bona fide of the revisionist that the goods in question were covered under the word "container" as mentioned in the certificate. The said argument, at the first instance, was very attractive, but on perusal of the record and the penalty order, it clearly shows that the penalty was imposed for the previous years also for use of Form - C on those items, which was not covered by the registration certificate. 16. It is admitted that the items, which were referred above, have been purchased utilizing Form - C to enable the revisionist to purchase the said goods at the concession rate, which were not listed as goods in the certificate, further for which the revisionist has neither applied nor was permitted to purchase the same utilizing the Form - C, for which he was subjected to penalty proceedings under section 10-A of the Act. 17. This Court, while deciding Sales/Trade Tax Revision No. 7 of 2011 (M/s Indian Farmers Fertilizer Cooperative Limited Aonla Vs. The CCT, Lucknow) on the levy of penalty under section 10- A of the Act, vide order dated 04.07.2022, has made the following observations:- "18. It is also noticed that railway siding, locomotives ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... horizedly only with intention to evade tax. 22. From the aforesaid facts it cannot be demonstrated that purchase of goods against Form-C was done in bona fide manner nor had the revisionist moved any application for inclusion of said goods for registration under Section 7 of the Act. 23. In the above circumstances it cannot be said that there is any infirmity in imposition of penalty by the revenue under Section 10 of the Act. Hence this Court is of the considered view that there is no infirmity in the order of Tribunal and hence no interference is required by this Court. " 18. In the present case, purchases of valves, regulator, PP caps, aluminum seal, etc. are not mentioned in the registration certificate and use of Form - C could not be demonstrated by the revisionist that the same are covered under the word "container" was under bonafide belief or under mistake of fact as on remand, notice was issued, but the revisionist failed to bring on record any cogent materials to justify the bonafide belief and therefore, a finding of fact was recorded by the assessing authority, which was not challenged by the revisionist, either in the first appeal or in second appeal. Only legal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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