- (1.) This revision is at the instance of the Commissioner of Sales Tax against the order dated March 12, 1992 passed in Second Appeal No. 278 of 1991 for the assessment year 1985-86. The opposite party is a manufacturer and seller of cycle and cycle rick-shaw tyres and tubes. It is registered under the U.P. Sales Tax Act, 1948 and has also obtained recognition certificate under Section 4B of the U.P. Sales Tax Act, 1948. The present revision arises out of penalty proceeding under Section 4B of the Act on the ground that besides manufacturing cycle tubes it has manufactured and sold super heavy duty rickshaw tubes for which, the dealer was not authorised under Section 4B of the Act. Thus, the dealer has violated Section 4B of the Act. In reply to the penalty notice the dealer-opposite party has placed reliance upon a notification No. S.T.-II-7551/X dated December 31, 1976, issued under Section 4B of the Act. In annexure III of the said notification, the notified goods are mentioned. Entry No. 1 is the relevant entry which reads as under: 1. Bicycles, tricycles, perambulators, and accessories and parts thereof.
(2.) Placing reliance upon the aforesaid notification it was submitted by the dealer that it is legally permissible for him to manufacture and sell rickshaw tubes also. The word "tricycles" would cover "rickshaws" also. There is no violation of Section 4B of the Act. The assessing authority has considered the explanation and examined the record and found that the rickshaw tubes were not permitted to be manufactured and only cycle tubes were permitted to be manufactured, thus, the violation of Section 4B was established and it levied the penalty by the order dated February 11, 1991 which has been confirmed by the appellate authority. But the Tribunal has set aside the penalty order.
(3.) Heard the counsel for the parties and perused the record. The following question of law has been framed in the memo of revision: Whether on the facts of the case and in view of honourable High Court's decision in Road Master Industries v. Commissioner, Sales Tax, U.P.,1980 TLD(All) 171 Sales Tax Tribunal, Meerut was legally justified to allow the second appeal filed by the assessee against penalty order under Section 4B read with Section 3B of the U. P. Sales Tax Act ;