RAJES KUMAR, J. - (1.) This revision under Section 11 of the U. P. Sales Tax Act, 1948 (hereinafter referred to as 'the Act') is directed against the order of the Tribunal dated February 26, 1994 relating to the assessment year 1987 -88.
(2.) THE brief facts of the case are that the applicant imported the goods, which according to the applicant was zinc dross weighing 990 kgs., 350 pieces from M/s. Zenith Limited, Bombay, for Rs. 1,84,164.23. At the Check -post form XXXI, No. 574987, as required under Section 28 -A of the Act, along with bills and builties was submitted. The check -post officer seized the goods on the ground that on chemical examination it was found that the goods sought to be imported were not zinc dross but were zinc, inasmuch as 96.5 zinc was found while according to report in dross the percentage of zinc should be 82.67 per cent. The goods were subsequently released on furnishing security. In pursuance of the seizure, penalty proceeding under Section 15 -A(1)(o) of the Act was initiated. The applicant filed a reply, which was not accepted and a sum of Rs. 1,38,600 was levied towards penalty under Section 15 -A(1)(o) of the Act. The assessing authority estimated the value at Rs. 3,46,000. The first appeal filed by the applicant was allowed in part. The first appellate authority reduced the amount of penalty to Rs. 20,000. Against the order of the first appellate authority, the applicant as well as the Commissioner of Sales Tax filed appeals before the Tribunal. The Tribunal vide order dated February 26,1994 allowed both the appeals and remanded the case back to the assessing officer. The Tribunal remanded back the case on the ground that the applicant was not confronted with the chemical examination report and the applicant may be given opportunity to give proper reply in respect of such report, and, thereafter, if found necessary the opportunity of cross examination should be given. The Tribunal also observed that the officer concerned may be asked for treating the goods other than zinc dross. The Tribunal further observed that if the applicant is able to prove that the goods having 96.5 per cent purity are zinc dross, penalty should not be levied. Heard learned Counsel for the parties.
(3.) LEARNED Counsel for the applicant contended that remand of the case by the Tribunal is wholly erroneous. He submitted that for the purpose of the penalty under Section 15 -A(1)(o) of the Act it has to be seen whether it was of Section 28 -A of the Act and whether the applicant made an attempt to evade the payment of tax. He submitted that the goods were accompanied by declaration form as contemplated under Section 28 -A of the Act along with bills and builties. Therefore, there was no violation of Section 28 -A of the Act. According to him, there was a difference of opinion in respect of the description/nomenclature of the goods with reference to the percentage of zinc and accordingly, the value of the goods may be considered at the time of assessment proceeding and on the basis of such difference, it cannot be said that the provisions of Section 28 -A of the Act were violated. He further submitted that in any view of the matter since the goods were accompanied by the requisite documents and the same were voluntarily submitted before the Check -post Officer, thus, no inference of any presumption of any attempt to evade tax can be drawn and as such penalty under Section 15 -A(1)(o) of the Act cannot be sustained. In support of his contention he relied upon the decision of the division Bench of this Court in the case of Tarseem Singh, Calcutta v. Trade Tax Officer reported in [2002] 126 STC 318 : [2000] UPTC 19 and in the case of which has been followed in another case of Commissioner of Trade Tax v. Mohd. Maqsudul Haq reported in [2002] UPTC 654.;