Vikram Nath, J. - (1.) AFFIDAVIT of service filed today is taken on record.
(2.) HEARD learned Standing Counsel for the Commissioner of Trade Tax, U. P., Lucknow, the applicant. Despite the fact that affidavit of service has been filed, the dealer has not put in appearance. The Commissioner of Trade Tax, U. P., Lucknow has filed this revision under Section 11(1) of the U. P. Trade Tax Act, 1948 (hereinafter referred to as, "the Act") against the judgment and order of the Trade Tax Tribunal, I Bench, Moradabad dated April 17/20, 2002 whereby the Tribunal has allowed the appeal filed by the dealer and has accepted its account books and at the same time dismissed the appeal filed by the Department. The dispute relates to the assessment year 1996 -97. The following questions of law have been sought to be raised in this revision: (1) Whether the Trade Tax Tribunal was legally justified to hold that the appellant does not have the facility and technology of producing pepperment oil and the export as such should be inferred as that of crude mentha oil of same strength ? (2) In spite of the fact that the crude mentha oil or pepperment oil actually exported out of the territory of India was of different T. M. C. as that purchased by the appellant, whether under these facts the purchases can be said to be made for the purpose of export or to be alleged as to have occasioned the export ? (3) If purchases can be said to be made for the purpose of export, whether they are liable to be exempted under Sub -section (1) of Section 5 of the Central Sales Tax Act, 1956?
(3.) THE dealer carries on business of purchases and sales of mentha oil, pepperment oil, T. M. C, etc. For the relevant assessment year it admitted the tax liability at Rs. 1,34,12,339 at a taxable turnover of Rs. 55,63,74,938. According to the dealer he had obtained orders for supply of mentha oil to parties outside the country and it was in connection with such export that it had purchased some goods and they were sold in the same form in which it was purchased. The assessing authority disbelieved the claim of the dealer and held that the goods purchased by the dealer were of lower strength whereas the goods exported were of higher strength and, therefore, the dealer had carried out manufacturing activity. It accordingly rejected the account books of the dealer and assessed the tax liability at Rs. 1,69,92,639 at a taxable turnover of Rs. 63,72,02,938 vide assessment order dated January 28, 1996. The appeal of the dealer was party allowed by the Deputy Commissioner (Appeals) vide order dated March 30, 1999 and certain exemptions on purchase of the oil were allowed. However, the finding with regard to the rejection of the account books were affirmed. Aggrieved by the same the dealer as well as the Department filed second appeal before the Tribunal. The Tribunal by the impugned order dated April 17/20, 2000 accepted the account books of the dealer and allowed its appeal and at the same time dismissed the appeal filed by the Department. Aggrieved by the same the present revision has been filed.;