RAJES KUMAR, J. - (1.) THESE two revisions under Section II of U.P. Trade Tax Act (hereinafter referred to as 'Act') are directed against the order of Tribunal dated 24th July, 1999 the assessment years 1987 -88 and 88 -89 both under the Central Sales Tax Act.
(2.) BY the impugned order Tribunal has deleted the penalty levied under Section 10 -A of the Act for the alleged default under Section 10(d) of the Central Sales Tax Act (hereinafter referred to as 'Central Act'). Brief facts of the case are that the dealer/opposite party (hereinafter referred to as 'Dealer') applied for registration under Central Sales Tax Act for the manufacturing of ice. During the proceedings for grant of registration statement of Sri Ramesh Chandra was recorded on 12.07.1987 in which he has categorically stated that he would sell the ice after manufacturing ice in the cold storage and only for the purpose of the manufacturing registration was required. The registration was granted by the assessing authority on 03.07.1987 w.e.f. 08.06.1987 for the manufacturing of ice and the dealer was allowed to purchase compressor machines, ice plant, motors, electrical goods, pipe and pipe fitting, generator, wood, fiber glass and thermocol etc. In the assessment year 1987 -88 applicant had purchased various items for Rs. 6,91,987/ - against Form 'C' at concessional rate of tax. The details of such goods have not been mentioned in the order. Such goods have been admittedly used in the construction of cold storage. Assessing authority initiated the penalty proceedings and issued show cause notice on the ground that the registration was granted for the manufacturing of ice while the goods purchased against Form 'C' were used in the cold storage and thus there was violation of Section 10(d) of the Central Act. Dealer filed reply to the show cause notice, which was not accepted and a sum of Rs. 1,03,797.45p. was levied towards penalty. First appeal filed by the dealer was rejected. Dealer filed second appeals before the Tribunal, which has been allowed and the penalty order has been set aside. Tribunal held that the dealer has explained that due to the reasons that it could not get non -sally water and the salty water was not suitable for the manufacturing of ice and could not get water from Agra Water Works, therefore, it was beyond the control to manufacture ice. Tribunal held that for the establishment of ice factory and cold storage machines are almost common, hence, the imported goods have been used in the construction of cold storage and it was beyond the control to manufacture ice and accordingly, held that on the facts stated above, it can not be said that there was a default under Section 10A of the Act.
(3.) FOR the assessment year 1988 -89 dealer had purchased wood for Rs. 87,288/ - against Form 'C' and admittedly used such wood in the construction of cold storage. Assessing authority issued notice under Section 10 -A of the Act for the alleged default of Section 10(d) of the Central Act on the ground that such wood were used in the construction of the cold storage and not in the construction of ice factory. Dealer filed reply. On the consideration of reply, notice under Section 10 -A of the Act was vacated and the proceeding was dropped. Deputy Commissioner (Executive) initiated the proceeding under Section 10 -B of the Act to revise the said order dated 15.03.1997 vacating the notice under Section 10 -A of the Act on the ground that the order was illegal and improper. Deputy Commissioner (Executive) was of the view that the registration was granted for the manufacturing of ice while wood purchased against Form 'C' used in the cold storage and the ice factory was never constructed and no manufacturing of ice was carried on. Dealer filed reply to the show cause notice stating therein that clue to the reason that he could not get non -salty water and the salty water was not suitable for the manufacturing of ice, the manufacturing of ice was beyond control. Deputy Commissioner (Executive), however, has not accepted the plea of the dealer and levied the penalty at Rs. 17,283/ -. According to Deputy Commissioner (Executive) the rate of tax was 12% + 1 % surcharge, which comes to 13.1% and one and half times of penalty to the extent of 19.8% was levied.;