ASHWANI KUMAR MISHRA,J. - (1.) This revision is directed against an order passed by the Tribunal dated 15.12.2005, whereby a penalty of Rs. 48,000/- has been imposed upon the assessee.
(2.) The assessee is engaged in the trading of steel utensils and is registered under the provisions of the Act. Its place of business situates at Hapur. It seems that certain goods were sold by the revisionist to a dealer at Kanpur, against bills raised on 19.9.2002. Such goods were being transported through a transporter with challan no.1340 dated 21.9.2002. According to the assessee, the transport vehicle suffered a break down while on its way from Hapur to Kanpur, at Etawah. The goods were then shifted to a different truck and while it was being brought to Kanpur, the vehicle was stopped by mobile squad team at Kanpur and the authorities on the basis of some diary maintained by the driver as well as on the statement of driver came to the conclusion that goods were being transported from Gwalior to Kanpur. The vehicle was consequently detained and an order of seizure was subsequently passed. An application filed by the assessee for release of goods was rejected and thereafter penalty proceedings were initiated. The assessing authority proceeded to impose penalty amounting to Rs. 96,790/- invoking its jurisdiction under section 13A(1)(o) of the Act. The assessee preferred an appeal before the Joint Commissioner, which was allowed and the penalty was set aside. Aggrieved by such order, revenue preferred a second appeal before the Tribunal, which has been allowed. The Tribunal examined the evidence available on record and came to the conclusion on the basis of diary and documents available with the driver that the goods were being brought in State of U.P. from Gwalior. The Tribunal with such findings has set aside the order passed by the Joint Commissioner and after considering the gravity of allegations levelled has imposed penalty amounting to Rs. 48,000/-.
(3.) Learned counsel for the revisionist submits that findings returned by the first appellate authority have not been reversed and in its absence, it was not open for the Tribunal to impose penalty. It is also stated that there is no finding in the order of the Tribunal that there was an intent on part of the assessee to evade payment of tax, which is necessary for imposition of penalty. Submission is that in such circumstances, the order of Tribunal cannot be sustained. Reliance is placed upon a decision of this Court in U.P. State Sugar Corporation, Unit Mundrewa, Basti v. The Commissioner of Trade Tax, U.P. reported in 2003 NTN (Vol 23) 917.;