Prakash Krishna, J. - (1.) The present revision is directed against the order dated October 26, 1991 passed under Section 15-A(l)(o) of the U.P. Sales Tax Act, 1948 (hereinafter referred to as "the Act"). The applicant is a registered dealer. The dispute relates to the assessment year 1987-88. It carried on the business of selling yarn including Resham yarn. It purchased 25 bales of resham yarn valued at Rs. 10,11,433.50/- from M/s. Sugandha Brothers, Howrah. The entire lot of 25 bales of resham yarn was brought from Howrah to Mughalsarai as personal luggage through Kalka Mail on October 7, 1987. On reaching Mughalsarai on October 8, 1987 the goods were booked from Mughalsarai to Varanasi vide Railway receipt No. P/167427 and P-167428. Varanasi is not en route of Kalka Mail. Form XXXI was got endorsed by the officer referred to in Sub-section (3) of section 28-A of the Act on October 27, 1987. A penalty proceeding after issuing show cause notice, was issued by the assessing authority on the allegation that the applicant on October 8, 1987 imported twenty-five bales of Resham yarn and failed to get endorsement on form XXXI by the next following working day. The endorsement was obtained from the officer concerned on October 27, 1987. In reply it was submitted that 25 bales of Resham yarn was booked from Mughalsarai to Varanasi by Train No. 49 Up, the earliest available train and the entire lot of 25 bales so imported from Howrah to Varanasi remained in the custody of railway authorities right from October 7, 1987, the day on which the same was put on break van of Kalka Mail as the personal luggage at Howrah station and physical possession of the same was all along with the railway till actual delivery of the goods was taken in terms of the High Court's order. It so happened that the goods were seized by the Enforcement Department at Varanasi on the belief that the goods were of foreign made. Subsequently in pursuance of the order passed by this Court in a proceeding under Section 482 of the Code of Criminal Procedure, 1898 the goods were ordered to be released. The Sales Tax Officer after taking into considering the entire facts and circumstances of the case passed the penalty order imposing penalty of Rs. 4,80,000/- vide order dated February 25, 1988. The quantum of penalty was reduced vide first appellate authority to Rs. 72,600/- vide order dated November 5, 1990. In second appeal the Tribunal has further reduced the penalty to Rs. 48,400/-, i.e., twice the amount of tax and additional tax due vide order dated October 26, 1991. Still feeling dissatisfied present revision has been filed by the dealer-applicant on the ground that on the facts and circumstances of the case no penalty is leviable.
(2.) Heard learned counsel for the parties and perused the record.
(3.) Sri Kunwar Saxena, learned counsel for the applicant, invited my attention towards Sub-section (4) of Section 28-A of the Act and submitted that no default was committed by the applicant and, as such, penalty under Section 15-A(l)(o) of the Act is not sustain-able. Elaborating the argument it was submitted that Sub-section (4) of Section 28A of the Act be interpreted in such a manner that the endorsement by the officer concerned be obtained by the next working day from the date the goods reached to its destination. The Tribunal has committed illegality in holding that the endorsement by the next working day should have been obtained by the next working day when the goods in question reached Mughalsarai. The goods were brought in the State of U.P. from Howrah at Mughalsarai and thereafter it was handed over to the railway administration for delivery of the goods through City Booking Agency at Varanasi. In contra, learned Standing Counsel submitted that on true and correct interpretation of Sub-section (4) of Section 28-A the order passed by the Tribunal is perfectly justified and no interference is called for from this Court.;