Court No. - 33 Case :- SALES/TRADE TAX REVISION No. - 1847 of 2008 Petitioner :- M/S Mohan Jewelers Pooranpur Respondent :- Commissioner, Commercial Tax, Lucknow Petitioner Counsel :- Shubham Agarwal Respondent Counsel :- C.S.C. Hon'ble Bharati Sapru,J.
Heard learned counsel for the assessee and learned
Standing Counsel for the State.
This revision has been filed by the assessee for the
assessment year 2004-05 against the order of the
Tribunal dated 2.9.2008. The questions of law
referred to are hereunder :-
(A) Whether the Tribunal was justified in imposing the penalty under Section
13-A(4) of the Act read with Section 48(5) of the VAT Act, which is much
more than the amount of security demanded from and furnished by the
applicant under Section 13-A(6) Read With Section 48(7) of the VAT Act ?
(B) Whether the tribunal was justified in imposing the penalty without
recording any finding that the jewelry was not recorded in the account book or
were not traceable to the bonafide dealer, and by relying upon the findings
given in the seizure proceedings which are summary in nature and in the teeth
of law declared by this Hon’ble Court in the case of M/s. Same Deutz Fahr
India (P) Ltd. and Fedders Layad Corporation Ltd. reported in 2005 (27) NTN
page 205 and 295 respectively ?
(C) Whether the tribunal was justified in confirming the penalty at such a high
rate in an arbitrary manner, without considering that the notice for
enhancement of penalty was given only for 10% and the first appeal has been
filed by the applicant and no appeal has been filed by the department ?
(D) Whether the tribunal was justified in confirming the penalty upon the
applicant under Section 13-A(4) only on the ground that the bills were not
accompanying the jewelery, though on the date of seiqure itself the statement
was recorded in which the name and address of the seller was furnished, and
the carbon copy of the bill was also furnished on the next day of seizure,
which is in the teeth of law declared by this Hon’ble Court in the case of M/s.
S.K. Enterprises reported in 2008 (3) VSTI page 407 & M/s Ram Bhajan
Surendra Kumar reported in 2004 STI page 437 ?
(E) Whether the penalty can be imposed on the basis of rough paper (Kachha
Parcha) which was only used for wrapping the Kada (gold bangle) ?
In these proceedings penalty has been imposed on
the assessee under Section 13-A(4), although some
relief has been given to the assessee by the Tribunal
yet the assessee contends that the order of the
Tribunal is not justified in view of the perverse
findings of fact which the Tribunal has recorded
against the assessee.
The contention of the learned Counsel for the
assessee is that the assessee has lost the papers and
bills in respect of M.P. Jewelers, Meerut. At the
time of seizure he has not been able to produce the
bills relating to M.P. Jewelers but he states that on
the same date itself he had disclosed that some part
of the jewelery which was being carried by him
have been purchased from M.P. Jewelers, after
receiving notice in the seizure he had given an
explanation with regard to the lost of bill pertaining
to M.P. Jewelers. This he states is also to be found
in his reply at the initial stage itself.
He contends that the Tribunal has wrongly recorded
that the explanation with regard to M.P. Jewelers
only came as after thought at the stage when the
penalty proceedings has already been initiated. He
has argued that, that was not the case he has placed
on record the documents and records to show that
he had placed the photo copy of the bill issued by
M.P. Jewelers at the first stage.
He further contends that once he has produced the
photo copy, which was traceable to a registered
dealer then it was always open to the authority to
verify the said documents.
Learned Counsel has argued that in such conditions
it cannot be said that the provisions of Section 13-
A(4) had been violated or that in such a case of
penalty would be justified under the said Section.
Having heard learned counsels on both sides and
having perused the record, I deem it appropriate
that the matter should be remanded to the Tribunal
to examine as to what was the stage when the
explanation with regard to M.P. Jewelers and the
photo copy of the bill had been produced by the
assessee in order to show that he had not violated
the provisions of Section 13-A(4). The matter is
remanded to the Tribunal for re-examination of this
matter. The matter on remand may be considered
and decided by the Tribunal within a period of three
months from the date of production of a certified
copy of this order before it. Certified copy of this
order may be produced before the Tribunal within
three weeks from today. The order passed by the
Tribunal shall be kept in abeyance till fresh decision
on remand.
This Revision is thus, disposed of.
Order Date :- 21.1.2010
S.P.