YASHWANT VARMA,J. - (1.) Heard Shri Aloke Kumar, counsel for the revisionist and Shri A.C. Tripathi, learned standing counsel.
(2.) This revision has been preferred against an order of the Tribunal dated 15 December 2006 which has affirmed an order passed by the Joint Commissioner purportedly exercising powers conferred by Section 10-B of the U.P. Trade Tax 1948.
(3.) The dispute itself arose out of a seizure of goods effected on 14 August 2003. The respondent seized the goods being transported by the assessee upon noticing that although in the declaration form, 15 cartons of lubricants had been mentioned, the truck was in fact found to be transporting only 10 such cartons. The Assistant Commissioner after obtaining payment of Rs. 42,560/- released the said goods. While dealing with the issue of penalty under Section 13-A(4) of the Act, however, the Assistant Commissioner noted that the goods in question were tax paid and that they also stood duly reflected and recorded in the books of accounts. He accordingly by order dated 8 February 2006 came to hold that no penalty was liable to be imposed upon the assessee. The Joint Commissioner drew proceedings under Section 10-B of the Act with the issuance of a notice dated 29 June 2006. By a detailed and wholly labored line of reasoning, he in terms of the order dated 5 August 2006 has proceeded to hold that penalty was liable to be levied upon the revisionist on account of discrepancies between the declaration and the actual quantity of goods being transported. Unfortunately this order has also been affirmed by the Tribunal. The Court is constrained to note that the Joint Commissioner does not rest his decision on any material or evidence that the goods in question were not tax paid or that they did not stand duly reflected in the books of accounts of the assessee. It is relevant to note that this was the sole and solitary issue which arose and fell for determination. Admittedly sub section (4) would stand attracted only in a case where goods are omitted from being shown in the books of accounts. The Court further notes that in the facts of the present case, the declaration was for 15 cartons whereas admittedly only 10 were found to be transported. If the authorities were to take an adverse view at all, the same could have possibly be taken and adopted only if the situation were vice versa. The decisions rendered by both the authorities - the Joint Commissioner as well as the Tribunal are untenable and are accordingly set aside.;