ASHWANI KUMAR MISHRA,J. - (1.) This revision is by the assessee against the order passed by the Trade Tax Tribunal, Noida dated 9.3.2016, whereby Second Appeal No. 314 of 2001 filed by the Revenue has been allowed. The penalty waived by the first appellate authority in appeal has been restored by the Tribunal.
(2.) Following questions are posed for consideration in the present revision:- (A) Whether the Trade Tax Tribunal was legally justified in law in setting aside the order of the Ist Appellate Authority and in confirming the penalty order passed by the assessing authority under Section 15-A (I)(o) of the Act ignoring the relevant facts of the case as are being found at the time of checking of the vehicles? (B) Whether the Trade Tax Tribunal was legally justified in law in allowing the appeal of the department which was admittedly represented as nobody appeared on behalf of the department to pursue the matter, even then the Tribunal allowed the appeal of its own, ignoring the submissions made by the applicant's counsel before it, even after noticed that none appeared on behalf of the department and several grounds which taken by the Tribunal of its own are being raised on behalf of the Commissioner, the grounds which were raised, cannot be considered or appreciated at 11, the Tribunal was justified in doing so? (C) Whether in any view of the facts and the submissions the bonafide mistake on the part of the selling dealer, can the applicant (purchasing dealer) be held guilty of any technical mistake and to be penalised for the same, the Tribunal was justified in doing so?
(3.) The assessee is a registered dealer and is agent of M/s Escorts JCB Ltd. Faridabad. The firm deals in selling of earth moving equipment and its spare part within the territory of Western U.P. A purchase order was issued by the assessee to M/s Escorts JCB Ltd. Faridabad for supplying earth moving equipment. The required equipments were to be transported from Faridabad to Noida in two different transport vehicles. The purchases were made against Form-C and Central Sales Tax @ 4% was paid. Form-C admittedly was issued prior to dispatch of the goods. The seller, however, had filled up details in Form -31. At the time when the goods were checked within the State of U.P. , the authority proceeded to seize it as Form-31 was incomplete, and goods were released only after deposit of security. Subsequently, penalty proceedings were initiated. The assessing authority found that there was possibility of misuse of form-31, as details were duly filled, and consequently, there was an intention to evade payment of tax. In first appeal, however, order of the assessing authority was reversed with a finding that in the facts and circumstances of the present case, there was no intention to evade payment of tax. The Tribunal recorded that there has never been any instance of misuse of Form-31 by the assessee in the past and that the transaction was duly backed by Form-C. It was also recorded that the transaction was duly reflected in the books of account. The payment was also made through cheque. It was also observed that the import of such excisable commodities otherwise would be possible ordinarily. It is this order of the first appellate authority which has been reversed by the Tribunal. The only reason assigned in the order of the Tribunal is that since form has been filled .Possibility of misuse of Form-31 cannot be ruled out. The Tribunal has also observed that cheque number has been mentioned and as such it is established that payment was made by cheque.;