Prakash Krishna, J. - (1.) THESE two revisions were heard together and are being disposed of by a common judgment. The learned Counsel for the parties jointly agreed that the identical controversy is involved in these revisions relating to the applicability of Section 15A(1)(r) of the U.P. Trade Tax Act, 1948.
(2.) THE dispute relates to the assessment years 1994 -95 and 1995 -96. The facts are not much in dispute. The dealer -opposite party carries on the business of refined oil, acid oil, etc. It imported coal from outside the State of U.P. against form XXXI. The said coal was used by it for job -work in refining the oil for the purpose of generating the steam to run the machines. The authorities below took the view that the dealer -opposite party has used form XXXI in contravention of the provisions of the Act inasmuch as the coal imported through form XXXI was not utilized in the business which was carried out by the dealer -opposite party. The Tribunal by the order under revision has set aside the penalty order on the ground that a common order of penalty in respect of two different offences cannot be passed. The Tribunal has placed reliance upon a judgment of this Court in Garga Pharma (P) Ltd. v. Commissioner of Sales Tax, U.P. Lucknow, [1980] UPTC 693 wherein it was held that imposition of penalty in consolidated form is illegal. In the memo of revision, the following questions of law have been sought to be raised: I. Whether, on the facts and in the circumstances of the case, the Trade Tax Tribunal is legally justified to set aside the penalty order relying upon the judgment in the case of Garga Pharma (P) Ltd., Lucknow v. Commissioner of Sales Tax, [1980] ATJ 289 wherein it was clearly held that under these circumstances the case should be remanded to the assessing authority for passing a fresh order? II. Whether, on the facts and in the circumstances of the case, the Trade Tax Tribunal is legally justified to hold that the notice issued under Section 15A(1)(r) was illegal on the ground that the proposed amount of penalty was not mentioned despite no such provisions being contemplated under Section 15A(1)(r) of the U.P. Trade Tax Act? III. Whether, on the facts and in the circumstances of the case, the Trade Tax Tribunal is legally justified to set aside the penalty imposed under Section 15A(1)(r) of the Act despite the dealer having used the declaration form for importing the coal to be used in job -work and manufacturing organic fertilizer, for which he was not authorised under the registration certificate.
(3.) HEARD the counsel for the parties and perused the record.;