Bharati Sapru, J. - (1.) Heard Sri Piyush Agrawal, learned Counsel for the assessee and Sri B.K. Pandey, learned Standing Counsel for the State.
(2.) This revision has been filed by the State against an order passed by the Tribunal dated 07.01.2011 by which the Tribunal has imposed a penalty on the assessee for nonfilling of Column-6 in From-38 in respect of the goods such as Trolleys, tyres and other wooden items, which were being transported from Rajpura (Punjab). The goods were on a onward journey from Rajpura (Punjab) to Agra and were intercepted by the Mobile Squad, Commercial Tax, Agra who passed a seizure order on 02.08.2009 demanding the security of Rs. 22,000/-. The security was deposited and the goods were released, thereafter, penalty proceedings were initiated under Section 54(1) (14) of U.P. VAT Act. The assessee gave his reply and a penalty order was passed on 26.09.2009.
(3.) Against the penalty order, the assessee filed a first appeal, which was rejected on 16.04.2010. Against the order dated 16.04.2010 the revisionist filed a second appeal, which too was dismissed by the Commercial Tax Tribunal, Agra on 07.01.2011. The following questions of law has been sought by the revisionist:- (1) Whether in view of the Division Bench judgement of this Hon'ble Court in the case of Rama Pulses v. State of U.P. (supra), the dealer had attempted to evade tax and avoid assessment of tax due or likely to be due under the Act has to be made out as a condition precedent by the Revenue before imposing penalty under Section 54 (1) 14) of the VAT Act (2) Whether in view of the Division Bench judgement of this Hon'ble Court in the case of Jain Shudh Vanaspati Ltd. (supra) the imposition of penalty is justified (3) Whether the judgment of the Single Judge in the case of Multitex Fabrication Engineering Ltd. (supra) has been considered by the Division Bench in the case of Rama Pulses (supra), still the imposition of penalty upon the applicant is justified (4) Whether admittedly the applicant had imported the trolley with four tyres and handles which is an asset of the applicant company and the applicant is not a trader of the said goods in question, still the imposition of penalty is justified (5) Whether in absence of any discrepancy found in quality, quantity or item accompanying the goods, merely column no.6 in Form-38 was not duly filled, the imposition of penalty in view of the Division Bench judgement of Rama Pulses (supra) and Jain Shudh Vanaspati Ltd. (supra) is justified (6) Whether the applicant had cited three judgement of the Tribunal inter parties with regard to dropping of penalty proceedings wherein column no.6 of Form-38 was not filled, still the Tribunal was justified in taking a different view in the impugned order (7) Whether in view of the judgement of this Hon'ble Court in the case of Associate Distributors Ltd. (supra) where the Hon'ble Court has held that once Bench of Tribunal cannot sit in appeal against the judgment of another Bench and if the Tribunal do not agree with the view taken by the earlier Bench the matter should be referred to the President for constituting a larger Bench, the order passed by the Tribunal in not following the judgement of this Hon'ble Court and passing the impugned order is justified (8) Whether on the facts and circumstances of the case the order of the Tribunal imposing penalty upon the applicant is justified Learned Counsel for the revisionist has vehemently argued that the revisionist was a registered dealer and was engaged in the business of manufacture and sale of Oil and in order to run his business he purchased trolleys with four tyres and handles, which were plant and stores for the revisionist and were actually treated by the revisionist as the assets of the company, which were being brought in and according to the revisionist when he purchased the same, he sent Form-38 to the seller and the Form-38 had to be filled by the seller, but unfortunately, the seller did not fill up column-6 and for this reason the goods were seized. However, learned Counsel argues that even at the time of seizure all the documents accompanying the goods such as the bill and the GR and other relevant documents were found to be accompanying the goods and no finding was recorded by the seizing authority that the goods had any difference from the goods as mentioned in the documents. ;