- (1.) THIS is a revision under Sec­tion 58 of the U.P. Value Added Tax Act (here­inafter referred to as the "VAT Act") challeng­ing the order of the Tribunal dated 20-6-2009 in appeal No. 333 of 2009.
(2.) THE brief facts of the case are that the applicant is a registered dealer under the Value Added Tax Act and carrying on the business of manufacture and sale of Industrial Filters/Filtration System. The case set up by the applicant is as follows : The applicant is carrying on the business of manufacture and sale of Industrial Filters/Filtration System. The applicant received two purchase orders from M/s UOP India (Pvt.) Limited, Sector 43, Sushant Lok, Phase-I, Gurgaon for manufacture and supply of pip­ing and value skid along with loose piping and spare parts of 12 polybed and 5 Polybed PSA Unit of Hydrogen generation plant un­der the MS/HSD quality improvement and residue up-gradation project of Gujarat Re­finery, Vadodra (Gujarat), which is a unit of Indian Oil Corporation Limited. The Indian Oil Corporation Limited, New Delhi, which is a Government of India Undertaking, placed an order dated 14-12-2007 for its Refinery at Gujarat for the aforesaid project on UOP is associated. Since the Indian Oil Corporation Ltd. has placed the purchase order on UOP for its Refinery at Vadodra (Gujarat) i.e. Gujarat Refinery; hence UOP in turn has placed two purchase orders on the applicant for manufacture and supply of piping value skid. For completing the aforesaid order for manufacture and supply of piping and value skid, some automatic valves which were im­ported from outside the country by Gujarat Refinery were to be given to the applicant as free issue material for the manufacture of value skid for the aforesaid unit of Gujarat Refinery. The cost of this material, namely, automatic values etc. imported from outside the country by Gujarat Refinery was not in­cluded in the contract value was to be sup­plied by Gujarat Refinery to the applicant free of cost. The ownership on these materials al­ways remained with the Gujarat Refinery and the said goods cannot be used for any other purpose except for the aforesaid purpose of manufacturing of piping and valve skid. Since the applicant has to receive the goods i.e. im­ported automatic valve from Gujarat Refin­ery hence the applicant sent two Forms 38 to Gujarat Refinery with the instruction to en­close the same with the goods i.e. imported Automatic Valves which were to be dis­patched from Gujarat to the applicant. The value skid which was to be manufactured by the applicant by including the imported automatic valves were to be sent back to Gujarat Refinery of Indian Oil Corporation Ltd. Gujarat Refinery which is also a Government of India Undertaking of Indian Oil Corpora­tion Ltd. sent the imported automatic valves along with their returnable Excise Gate Pass duly endorsed by Central Industrial Security Force, challan-cum-packing slip, dispatch list as well as the intimation given to the Deputy Commissioner, Central Excise, Vadodra re­garding dispatch of the aforesaid goods. It is contended that Indian Oil Corpora­tion Limited had dispatched automatic but­terfly valves and automatic glove valve In-Line Silencer in 119 pieces, packed in 12 wooden cases against challan No. 44 dated 31-3-2009 to the applicant. It is claimed that seven wooden cases were dispatched in Truck No, HR-38H/2535 and five wooden cases were dispatched in Truck No. RJ-32GA/4335. The first consignment of seven packages had reached to the applicant. However, when the Truck No. RJ-32GA/4335 loaded with the aforesaid wooden cases were in transit, the Mobile Squad, Gautam Budh Nagar inter­cepted the truck on 4-4-2009. The driver of the vehicle produced the G.R. No. 034167 dated 31-3-2009, Form No. 38, No. A.A. 3476783 of the applicant and a covering let­ter written by the I.O.C.L., Vadodra to Deputy Commissioner, Excise and Custom, Division-V, Vadodra dated 12-3-2009, challan-cum packing list No. J.M.R.O.W./44/2008-09 dated 31-3-2009. On enquiry it was found that in Form 38, column No. 6 was not filled i.e. bill, cash memo, challan, tax invoice etc. were not mentioned in Form 38. On this ground the goods were detained and subsequently seized. A sum of Rs.52,12,500/- has been de­manded towards security in cash. The appli­cant filed an application under Section 48 (7) of the Act before the Joint Commissioner (SIB), Gautam Budh Nagar. The Joint Com­missioner (SIB) vide order dated 29-4-2009 has upheld the seizure of the goods but has reduced the amount of security to Rs.11,12,000/-.
(3.) BEING aggrieved by the order, the appli­cant filed appeal before the Tribunal. The Tri­bunal by the impugned order dismissed the appeal. The Tribunal has confirmed the sei­zure of the goods on the ground that in Form 38, column No. 6 was not filled. The bill, challan number, etc. were not mentioned in the Form which shows intention to evade the tax as the said Form could be used again for the import of the same quantity, weight and value of the goods. The Tribunal has upheld the seizure of the goods and demand of secu­rity following the decision of this Court in the case of M/s KMGS Road Signs Pvt. Ltd., New Delhi v. Commissioner, Commercial Taxes, U.P., Lucknow, reported in 2009 NTN (Vol. 39) 263. The decision of the Apex Court in the case of Guljag Industries v. CTO, re­ported in (2007) 7 SCC 269 : (2007 AIR SCW 5044) and the decision of the Apex Court in the case of Assistant Commercial Tax Officer v. Bajaj Electricals Limited (2009) 1 SCC 308 : (2008 AIR SCW 8263);