- (1.) HEARD Sri S.D. Singh, learned senior counsel, assisted by Sri Harsh Vardhan Gupta, learned counsel for the petitioner and Sri B.K. Pandey learned standing counsel for the respondents.
(2.) THIS writ petition has been filed challenging the order dated 26th June, 2014 passed by the Member, Commercial Tax Tribunal, Kanpur Bench -3, Kanpur in Misc. Appeal No. 06 of 2014 year 2013 -14 under Section 31 whereby the application of the petitioner for rectification of mistake in the order of the Tribunal dated 15th March, 2014 passed in Appeal No. 96 of 2014 was rejected. The Tribunal passed the order dated 15th March, 2014 in appeal arising from the order passed under Section 48 (7) of the U.P. Vat Act, 2008 (hereinafter referred to as 'the Act') observing that the goods in question are covered by the entry plastic footwear liable to tax @ 4% which was found being imported without form 38. Tribunal took a liberal view and directed release of goods on furnishing cash security equal to the amount of tax payable on the goods in question. The Tribunal also considered a decision of a coordinate Bench.
(3.) THEREAFTER the petitioner filed an application under Section 31 of the Act on the ground that the Agra Bench of the Tribunal has considered a decision of Hon'ble Bombay High Court in the case of CST Vs. Dev Enterprises Ltd and held similar commodity to be plastic footwear. On these facts the Tribunal rejected the application under Section 31 of the Act by the impugned order dated 26.6.2014. Sri S.D. Singh, learned senior counsel submits that the controversy before the Agra Bench of the Tribunal was as to whether similar type of commodity was taxable @ 4% under entry 'plastic footwear' or as unclassified goods. He submits that in that case the stand of the department was that the goods in question were unclassified goods whereas dealer's stand was that the goods were 'plastic footwear'. The question of exemption was not in issue before the Agra Bench of the Tribunal. He, therefore, submits that the Tribunal was wrong to follow the decision of Agra Bench of the Tribunal while rejecting the appeal of the petitioner and thus there was mistake apparent on record.;