R.B.Misra, J. - (1.) This present trade tax revision has been preferred under Section 11 of the U.P. Trade Tax Act, 1948 (in short called "the Act") against the order dated June 26, 2002 passed in Second Appeal No, 332 of 2002 (2002-2003)--Section 13-A(6) of "the Act". Heard Sri Kunwar Saxona, learned counsel for the applicant/ revisionist and Sri B.K. Pandey, learned Standing Counsel for the Commissioner of Trade Tax/Revenue and with the consent of the parties, this revision is disposed of finally at this stage under second proviso to Rule 2 of Chapter XXII of the Allahabad High Court Rules, 1952.
(2.) The facts necessary for adjudication of the present revision are that the applicant is a public limited company and is registered under U.P. as well as Central Sales Tax Act as also Central Excise Act and is engaged in the manufacture and sale of energy measuring instruments (electric meters) of State Electricity Board and other public sector enterprises as the buyers. It appears that the applicant/ revisionist purchased component parts of the meters, such as, frames and magnet yoke, valued at Rs. 3,31,808 from Auto and General Castings Private Ltd., Delhi, a regular supplier of the applicant for which a "form 31" No. 2278535 was despatched, however, the goods in question were being transported through truck No. DL-1L/C-8997. On interception Trade Tax Officer, Mobile Squad, on April 8, 2002 found that the consignment was not accompanied with the declaration "form No. 31". Therefore, a notice purported to have been issued under Section 28-A of "the Act". The reply of the applicant/revisionist was not satisfactory ; therefore, goods were seized on April 10, 2002 on the estimated value of Rs. 3,32,000 and security three times to the tax payable, i.e., Rs. 99,600 was demanded to release the goods. Against the above order a representation under Section 13-A(6) of "the Act" was filed before the Assistant Commissioner (Enforcement) which was rejected on April 15, 2002. Being aggrieved appeal was filed before the Trade Tax Tribunal, where it was contended on behalf of the applicant/revisionist that there was no check-post established on way from Delhi to Noida where goods were being transported and since "form No. 31" has already been despatched and by inadvertence it was not handed over to the person-in-charge of the vehicle, therefore, the omission on the part of the supplier/driver could not be taken to be an intention to evade payment of tax on the part of the applicant. It was contended that goods in nature are raw material, component parts and were not meant for resale as such the goods being transported without "form No. 31" could not be considered to be an attempt to evade payment of tax. According to the applicant/revisionist the entire sales were made to State Electricity Board and not to the general customers and therefore the applicant was entitled to the benefit of "CENVAT" under Central Excise Act, 1944 on declaring the import of goods. However, learned Tribunal by its order dated June 22, 2002 dismissed the appeal.
(3.) In 1998 UPTC 640 (Commissioner of Sales Tax v. Toni Electronics Ltd.), this Court observed that "a division Bench of the High Court in Jain Shudh Vanaspati Ltd., Ghaziabad v. State of U.P. [1983) 53 STC 54 ; 1983 UPTC 198 has held that the absence of the requisite documents which are required to be accompanied the goods sought to be imported in terms of Section 28-A of 'the Act' by itself may not be sufficient to sustain the penalty in a given case. It was pointed out that in addition it must be shown that there was material on record to indicate that the goods were imported in an attempt to evade assessment or payment of tax due or likely to be due under the Act. In other words unless the twin conditions, namely, the absence of relevant document and the intention to evade assessment or payment of tax are established, no penalty can be imposed.";