- (1.) R. K. GULATI, J. This sales tax revision is directed against the order dated February 13, 1990 passed by the Sales Tax Tribunal, Bench-II, Ghaziabad. It may be pointed out that the order under revision is a common order by which the Tribunal had decided Second Appeal Nos. 647 and 648 of 1988 in respect of the assessment year 1985-86. However, this revision is directed against that part of the order of the Tribunal by which Appeal No. 647 of 1988 was decided. The subject-matter of the other appeal does not concern this revision. Heard learned counsel for the parties.
(2.) THE facts are, that the assessee was subjected to a penalty of Rs. 20,400 under section 15-A (1) (o) of the U. P. Sales Tax Act (now called the U. P. Trade Tax Act) for importing iron strips weighing 12. 5 tonnes from Hissar to Sahebabad a place within the State of U. P. THE vehicle carrying the goods was intercepted by the Sales Tax Officer, Mobile Squad when it was noticed that the goods were not accompanied by form 31 as required under section 28-A of the Act. THE explanation of the assessee was that a purchase order dated May 28, 1985 was placed with M/s. Jindal Strips Limited, Hissar for the purchase of 150 tonnes of iron strips and form 31 was also sent to the selling dealer. In pursuance of the said order about 112. 530 tonnes of goods had already been received and further consignment in question of 12. 5 tonnes, was being transported when the goods were intercepted. According to the assessee form 31 which was given to the consignor was inadvertently left there by the driver but all other documents relating to the consignment were available with driver when the vehicle was checked. It was also explained that the mistake was only accidental and there was no intention to evade any assessment or payment of tax in importing the goods within the State of U. P. As the explanation given did not find favour with the assessing authority he imposed a penalty of Rs. 20,400 under section 15-A (1) (o) of the Act. The appeal filed by the assessee before the Deputy Commissioner (Appeals), Sales Tax, Ghaziabad also did Pot bring any favourable result inasmuch as the appeal was also dismissed. Thereafter the assessee filed a second appeal before the Sales Tax Tribunal which also upheld the penalty but in doing so the quantum of penalty was reduced to Rs. 7,000. It is in these circumstances that this revision has been preferred by the assessee against the order passed by the Tribunal. Learned counsel for the assessee contended that the Tribunal has sustained the order of penalty for a technical breach, namely, form 31 was not accompanying the consignment. It was argued that on facts no case for imposition of any penalty was made out and the Tribunal fell in error when it sustained the penalty order though in part. It was further argued that the Tribunal has not found as a fact that the import of the goods in question without form 31 was with an intention to evade assessment or payment of tax under the provisions of the U. P. Sales Tax Act. The learned counsel also drew the attention of the court to the assessment order for the year in question which was completed on May 2, 1990, a copy of which has been filed as annexure 1 to the affidavit filed in support of the revision.
(3.) THE provision of section 15-A (1) (o) read with section 28-A has been the subject-matter of consideration before this Court on more than one occasion. In Jain Shudh Vanaspati Ltd. v. State of U. P. [1983] 53 STC 54; 1983 (1) UPTC 198 a Division Bench of this Court has held that the power to detain the goods and levy penalty cannot be exercised under section 15-A (1) (o) read with section 28-A merely for the reasons that the disputed goods were not accompanied with requisite documents or the documents accompanying were false. It was pointed out that under the said provisions the goods can only be detained if they are not accompanied by requisite documents and further there was material to indicate that the goods were being imported in an attempt to evade assessment or payment of tax due or likely to be due under the Act. Now in the instant case, the Tribunal has not recorded any finding about the mens rea of the assessee in importing the goods in violation of section 28-A of the Act. On the other hand in the assessment order the assessing authority has recorded a categorical finding that the goods in question were imported against form 31 and were part of the same transaction by which an order dated May 18, 1985 was placed with M/s. Jindal Strips Limited, Hissar. It has also come on record that the entire purchase price of the goods against that order was paid in advance by cheque and further all the goods were duly found recorded in the account books of the assessee. It is also relevant to point out that Tribunal has not disputed the case of the assessee that the goods in question were part of the order dated May 18, 1985 or that the assessee had not issued form 31 when that order was placed to the selling dealer. The Tribunal has proceeded to sustain the penalty for the only reason that goods were not accompanied by form 31. The Tribunal has also not refuted the case that form 31 was left with the selling dealer because of the mistake on the part of the driver.;