Ashwani Kumar Mishra, J. - (1.) Heard Sri Vishwjeet, learned counsel for the revisionist and learned standing counsel for the opposite parties.
(2.) This revision is directed against an order of the Trade Tax Tribunal Gorakhpur dated 9.4.2007 in so far penalty of Rs. 55000/- under Section 15-A(1)(O) of the U.P. Trade Tax Act has been affirmed. The Tribunal has disbelieved the defence of the assesee that the extra goods found do not belong to the assessee and it belongs to the transporter.
(3.) From the materials placed on record, it appears that the goods belonging to the assessee were being transported through a transport company and at the time when the vehicle was seized, certain goods over and above the declaration made by the assessee, were found in the vehicle. These extra goods were released to the transporter and the security amount was also deposited by the transporter. Specific defence was taken by the assessee that extra goods found in the vehicledid not belong to the assessee. This specific aspect is substantiated from the order passed by the Deputy Commissioner on 11.8.2005. Before Tribunal also a specific ground in that regard was urged as ground No. 2 in the memo of appeal. The Tribunal, however, has not adverted to this aspect of the matter and has merely observed that extra goods found were not mentioned in the books of account of the assessee. Once the assessee has disowned these goods and had substantiated that these goods belong to the transporter, the question of goods being reflected in the books of account of the assessee do not arise. The Tribunal has, therefore, not examined the matter in correct perspective. Even otherwise, this Court in Trade Tax Revision No. 464 of 2006 (Kaushilya Metals, Mirzapur v. Commissioner Trade Tax U.P. ) has been pleased to observe that where extra goods belong to the transporter and not to the assessee, no penalty can be imposed. Following observations were made in the judgment dated passed in Trade Tax Revision No. 464 of 2006 dated 18.11.2016:- "The fact, as noted above, clearly shows that the authorities themselves have found the goods covered by bill No.24 dated 22.4.2002 and form-31 No.F/JJ-0952524 were being imported in accordance with law. No discrepancy or breach of any of the provisions of the Act, was found. Under the circumstances, there was no occasion to levy penalty under Section 15-A (1)(o) of the Act with respect to the goods covered by the aforesaid bill. Now, the question remains with regard to justification of penalty upon the assessee with respect to the extra found metal waste of 2000 Kgs. in his reply to the show cause notice for seizure of goods, the assessee has clearly stated that he has no concern with extra found goods and thereupon such extra found goods were seized and the same were released on deposit of security by one Subhash Chand. There is no finding in the penalty order that the extra found goods of 2000 Kgs. belong to the assessee and the same were got released by him. On the contrary, the transporter had also issued a certificate that the assessee has no concern with the aforesaid 2000 Kgs. metal scrap. This certificate was also filed before the authority. Under the circumstances, there was no evidence before the assessing authority or the first appellate authority or the Tribunal for import or transport of extra found metal waste by the assessee in contravention of the provisions of Section 28-A of the Act. Under the circumstances, with respect to those goods, no penalty could have been imposed upon the assessee. In view of the above discussions, the revision is allowed.The impugned order dated 10.3.2006 in Second Appeal No.515 of 2003 for the Assessment Year 2002-03 passed by the Member, Commercial Tax Tribunal, Varanasi Bench-V, Varanasi, is hereby set aside. The amount of penalty, if any, deposited by the assessee shall be refunded by the assessing authority within four weeks from today along with interest from the date of deposit. The revision is allowed with costs of Rs. 5,000/-which shall be paid by the respondent to the assessee within four weeks". ;