- (1.) THE applicant is a partnership concern duly registered under the U. P. Sales Tax Act. THE applicant booked 62 bundles of 10" D. S. Rubber Rolls from the consignor M/s. Parkman (India) Polymer Industries, Thane. THE said goods was cleared by the Excise Department and form G. P. I was issued. THE said goods was handed Over to the Trans port Company, namely, Vijay Laxmi Transport Company along with the relevant documents, delivery challan, form No. 31, etc. When the goods reached Mohan Nagar Check Post, Ghaziabad in the State of U. P. , the documents were shown and, at that stage, upon check ing, it was found that instead of 60 bundles of 10" D. S. Rubber Rolls, the truck was loaded with 20 bundles of 10" D. S. Rubber Rolls and 42 bundles of 5" D. S. Rubber Rolls. THE applicant, on finding that the consignor had sent wrong bundles of 5" D. S. Rubber Rolls, requested the authorities to only release the 10" Bundles of D. S. Rubber Rolls and permit the applicant to sent back the 5" D. S. Rubber Rolls to the consignor. THE check post au thorities expressed their inability to release the 10" D. S. Rubber Rolls and demanded full security on the value of goods including the value of goods of 5" D. S. Rubber Rolls. Since the applicant was in dire necessity of the goods, a security of Rs. 37, 127/- was deposited and the goods were released.
(2.) IT has come on record that the 5" D. S. Rubber Rolls were-sent back from the check post itself through G. R. No. 798930 through Vijay Laxmi Transport Company on the same day when the goods were released by the Sales Tax Authorities. IT has also come on record that the consignor, on coming to know that wrong bundles had been sent to the applicant due to their oversight, immediately issued a certificate on the very next day stating therein that wrong bundles had been sent to the ap plicant by mistake. That all these facts were brought to the notice of the Assessing Authority in spite of which, the Assessing Authority issued an or der of penalty converting the security amount as penalty. The applicant, being aggrieved by the said order, preferred an appeal before the Assistant Commissioner (Judicial) Sales Tax, Lucknow which was also dismissed. The ap plicant, thereafter, filed an appeal before the Tribunal which was also dismissed. The Tri bunal held that the certificate issued by the consignor cannot be relied upon and that it does not inspire any confidence. The Tribu nal, as well as, the lower authorities failed to consider the fact that wrong goods was sent by the consignor which was sent back from the check post itself on the same day when the said goods was released by the Sales Tax Authorities. Heard Sri P. Agarwal, the learned coun sel for the applicant and Sri Sanjiv Shankhdhar, the learned Additional Chief Standing Counsel for the department.
(3.) PENALTY has been imposed under Section 15-A (1) (o) of the U. P. Sales Tax Act for vio lation of the provisions of Section 28-A of the U. P. Sales Tax Act. For facility, the provi sions of Section 15-A (1) (o) of the U. P. Sales Tax Act is quoted hereunder. "15-A. Penalties in certain cases.- (1) If the Assessing Authority is satisfied that any dealer or other person- (a ). . . . . . . . . . (o) imports or transports, or attempts to import or transport, or abets the import or transport of any goods in contravention of the provisions of Section 28-A; it may after such enquiry, if any, as it may deem necessary, direct that such dealer or person shall pay, by way of penalty, in addition to the tax, if any payable by him. The aforesaid provision provides that where a dealer or a person attempts to import or transport any goods in contravention of the provisions of Section 28-A of the Act, in that event, a penalty could be imposed.;