Prakash Krishna, J. - (1.) BEING aggrieved by the order dated May 28, 2008 passed by the Commercial Tax Tribunal, Jhansi, in Appeal No. 161 of 2008 for the assessment year 2008 -09 under Section 48(7) of the U. P. Value Added Tax Act, 2008, the present revision is at the instance of the Department. The following questions of law have been sought to be raised in the present revision: (i) Whether, on the facts and in the circumstances of the case, Commercial Tax Tribunal is legally justified in holding that maize flakes are covered under the term "kachri" which is an exempted item under Schedule I of the Value Added Tax Act and hence exempted from tax ? Kachri is a preparation of rice in view of decision of the honourable court reported in Kasturi Lal & Sons v. Commissioner of Sales Tax reported in, [1987] UPTC 1298 as well as in the case of Commissioner of Sales Tax v. . (ii) Whether, on the facts and in the circumstances of the case, Commercial Tax Tribunal is legally justified in giving direction for release of the goods without any demand of security whereas the imported goods are liable to tax and not exempted under Schedule I of the Value Added Tax Act?
(2.) IT arises out of the proceeding seizing the goods (maize flakes) of the dealer -opposite party which were loaded in truck No. U.P -78 -BN -4218. These goods were seized under Section 50 of the Act by the Assistant Commissioner (Incharge), Commercial Tax, Sahayata Kendra Raksa, Jhansi and by the order dated April 26, 2008 security to the tune of Rs. 26,450 was demanded. On verification of the goods in the vehicle, it was found that the dealer -opposite party is importing maize flakes (makka poha) for sale/manufacturing purposes as a non -taxable item claiming it as kachri. A show -cause notice dated April 26, 2008 was given on the ground that the said goods are taxable under the Act. Against the seizure order, a statutory representation was made before the Joint Commissioner (SIB/Enforcement), Commercial Tax, Jhansi who by order dated May 2, 2008 dismissed the representation filed under first proviso to Section 48(7) of the Act. It was found that the goods in question is not "kachri" and, therefore, is not exempt. The said order was challenged in Appeal No. 161 of 2008 before the Tribunal. The Tribunal by the order under revision set aside the order demanding security as well as the seizure order on the ground that the question of taxability cannot be decided at this stage. Whether the goods in question are taxable or not shall be considered at the time of framing of the assessment order and ordered that the goods be released after taking a sample of the seized material. The said order is under challenge at the instance of the Department. Sri Bipin Kumar Pandey, learned Standing Counsel for the Department, submits that whether the goods in question are taxable or not stands concluded by a decision of this Court in Commissioner of Sales Tax v. .
(3.) THE learned Counsel for the dealer -opposite party, on the other hand, submits that the dealer -opposite party is a registered dealer and the question of taxability will be gone into by the assessing officer at the time of framing of the assessment order. The said issue cannot be adjudicated at this stage and the Tribunal has taken care of the interest of the Revenue by ordering that a sample of the goods in question be preserved. He further submits that in the case of the dealer -opposite party, the Trade Tax Tribunal Bench -1, Kanpur in Second Appeal No. 756 of 1995 for the assessment year 1990 -91 by the order dated January 29, 2007 has already held that "makai ka poha" is covered by notification dated January 31, 1985 at serial No. 5 and is included in the category of "kachri", a non -taxable item. The said order has attained finality as it was not challenged further by the Department by way of revision or otherwise.;