B. Amit Sthalekar, J. - (1.) AGGRIEVED by the order of the Commercial Tax Tribunal dated 23.11.2011, these revisions have been filed before this Court.
(2.) BRIEFLY stated the case of the revisionist, which is the Food Corporation of India, is that certain consignment of wheat was brought from the State of Punjab by Rail in rakes to the godown of the Food Corporation of India in Faizabad, U.P. It was also admitted that the goods were not accompanied by Form -38. It is not disputed between the parties that during transit from outside U.P. to the godowns of the Food Corporation of India in Faizabad, U.P., the goods were neither seized nor intercepted by the respondent tax authorities. The entire consignment of wheat was sold by the Food Corporation of India and the tax on the same was also paid. It was at this stage that in 2010 -11 the Taxing Authorities discovered that the goods were not accompanied by Form -38 and therefore, a presumption was drawn by the authorities that the goods had been brought from outside the state and sold within the state of U.P. with the intent to evade the tax. Accordingly penalty proceedings were initiated against the Food Corporation of the India and the said penalty was levied under Section 54(1)(14) of the U.P. Value Added Tax Act, 2008 (hereinafter referred to as the VAT Act, 2008).
(3.) THE Assessing Authority, Joint Commissioner, Faizabad relying upon a seven judges Constitution Bench judgment of the Supreme Court reported in : AIR 1977 SC 2279, R.S. Joshi etc. Vs. Ajit Mills Ltd. and Another etc., in which the Supreme Court has held that where admittedly the goods are not accompanied by the appropriate documents and are brought from outside the state and sold within the state there would be a presumption that the sale has been with the intent to evade tax and for this purpose, it is not necessary for the authority to examine as to whether the dealer or the importer actually intended or brought the goods within the state with the intent to defraud the tax, has imposed a penalty of Rs. 1,49,01,600/ - and has issued a demand for deposit of the same within 30 days. Similar order and demand has been made in all other above revisions as they are arise out of a common order in common proceedings in respect of the same consignment of wheat Rakes.;