Anshuman Singh, J. - (1.) The Commissioner of Sales Tax has filed this revision under Section 11(1) of the U.P. Sales Tax Act (hereinafter referred to as the Act) against the judgment dated January 31, 1985, passed by the Sales Tax Tribunal, Bench II, Kanpur, relating to assessment year 1973-74 arising out of proceedings under Section 15-A(1) of the Act.
(2.) The respondent-assessee, a registered dealer, manufactured vegetable oil and washing soap. It obtained a recognition certificate for the year in question for purchase of raw material for the manufacture of vanaspati. In the recognition certificate the details of the goods to be purchased by the dealer were given and it was issued forms III-B for purchasing those commodities through those forms. In the recognition certificate mustard oil was added on May 23, 1973, but before that date the mustard oil did not find place in the said certificate. However, admittedly even before May 23, 1973, the respondent-assessee purchased mustard oil worth Rs. 15,94,174 through forms III-B. According to the department since the assessee misused forms III-B issued to it, it became liable to pay penalty under Section 15-A(1)(1) of the Act. The assessing authority by an order dated August 5,1977, imposed a penalty of Rs. 70,000. The respondent-assessee feeling aggrieved against the said order preferred a first appeal before the appellate authority which by an order dated November 20, 1978, reduced the penalty to Rs. 50,000. The assessee as well as the Revenue both feeling aggrieved against the order of the appellate authority preferred revisions before the Judge (Revisions), Sales Tax. The revision of the assessee came up for hearing and the Judge (Revisions), Sales Tax, by his order dated June 20, 1980, allowed the same in part and reduced the penalty to Rs. 30,000. This order of the Judge (Revisions), Sales Tax, became final and was not challenged by the Revenue. In the meantime the Tribunal was constituted and the revision of the Revenue was converted into a second appeal and came up for hearing before the Tribunal which by order dated January 31, 1985, dismissed the appeal without going into the merits of the case.
(3.) Heard learned counsel for the parties. Learned counsel appearing for the Commissioner of Sales Tax urged that the Tribunal committed an error in not disposing of the appeal on merits and in support of his contention he placed reliance on a decision of the Supreme Court in Commissioner of Sales Tax v. Vijai Int. Udyog 1985 UPTC 131. On the strength of the said decision the Standing Counsel urged that the Tribunal should be directed to decide the appeal of the Revenue on merits. In that case, against the appellate decision of the Assistant Commissioner the assessee and the Commissioner appealed to the Tribunal-the assessee claiming acceptance of the accounts and the returned taxable turnover and the Commissioner challenging the reduction of the estimated taxable turnover from Rs. 1,00,000 to Rs. 65,000. Assessee's appeal was dismissed by order dated June 11, 1982, by the Tribunal and the decision of the Assistant Commissioner was confirmed. The appeal by the Commissioner was partly allowed on September 13, 1982 and the estimated taxable turnover was determined at Rs. 90,000. Assessee allowed the Tribunal's decision against it to become final but challenge was laid against the decision of the Tribunal in the connected appeal by the Commissioner by filing a revision under Section 11 of the Act before this Court. This Court applying the doctrine of merger held that once the Tribunal decided the appeal filed by the assessee and dismissed it, the judgment of the Assistant Commissioner (Judicial) stood merged in the judgment of the Tribunal. When the appeal filed by the Commissioner was allowed, the Tribunal was interfering in effect with a previous order of the Tribunal itself which is incompetent. The Supreme Court held : On the facts of the case, we do not accept the view of the High Court that the doctrine of merger applied. Both the assessee and the Commissioner had a statutory right of appeal to the Tribunal against the decision of the Assistant Commissioner and in exercise of that right two separate appeals had been filed. On account of the mistake of the Tribunal in not clubbing the two appeals the statutory right of appeal of one party could not be negatived. It is a well-settled proposition of law that no party should suffer on account of the mistake of the court or the Tribunal. That apart in a situation like this, the doctrine of merger has no application and the High Court was in error in throwing out the Commissioner's appeal by applying the doctrine of merger.;