R.K.Gulati, J. - (1.) Bharat Ply-wood Products Pvt. Ltd. (hereinafter referred to as "the assessee") being aggrieved against an order of the Sales Tax Tribunal confirming the penalty of Rs. 1,600 under Section 15-A(1)(o) of the U.P. Sales Tax Act, 1948 (for short "the Act") has come up in this revision. The proceedings relate to the assessment year 1984-85.
(2.) The brief facts are that the assessee imported from outside the State of Uttar Pradesh certain quantity of veneer for manufacturing plywood, by road transport through Tamkohi Raj check-post, District Deoria. The goods were supplied by R.K. Industries, Purnia (Bihar). It appears that the assessee was issued by its assessing officer form XXXI bearing No. 0220467 which it forwarded to its ex-U.P. supplier, namely, R.K. Industries along with its supply order. The goods were despatched by the supplier on 3rd of August, 1984. On 9th August, 1984, when the vehicle reached Tamkohi Raj check-post, located in the State of Uttar Pradesh the same was checked. Form XXXI was not produced by the driver, on the plea that he had left it behind. According to the assessee's case as set out in the order of the Tribunal, the sale invoices and form XXXV contained the particulars of form XXXI referred earlier, but the same were deleted from form XXXV when presented at the check-post, because since after the issuance of form XXXI and its despatch to the ex-U.P. supplier, the State Government declared the series of form XXXI in question valid up to 31st July, 1984 only. Further, when the goods reached their destination, i.e., Najibabad, the assessee's place of business, the assessee obtained a fresh form XXXI of the new series from its assessing officer and submitted the same before the said authority. In the above circumstances, the assessee pleaded that there was no breach on its part, of the provisions contained in Section 28-A of the Act. It may also be observed that the goods in dispute were seized at the check-post, which were subsequently released to the assessee on its furnishing security.
(3.) In due course, penalty proceedings under Section 15-A(1)(o) of the Act were initiated against the assessee. These provisions empower the assessing authority on its being satisfied to impose penalty on an assessee or other person, who imports or transports, or attempts to import or transport, or abets the import or transport of any goods in contravention of the provisions of Section 28-A. The categorical findings of the assessing officer in the penalty order were that there was no dishonest intention on the part of the assessee, when it utilised form XXXI which had been invalidated, nor the assessee was guilty of contumacious conduct with a view to evade payment of due tax. On the date when the form was issued it was perfectly valid and subsequently the period to which the questionable form XXXI pertained was invalidated with effect from 1st of August, 1984. It was not disputed that within two days of the vehicle being apprehended at the check-post, the assessee obtained fresh form XXXI and produced the same before the assessing officer. The assessing officer was, however, of the view that there was a technical default on the part of the assessee in importing the goods on a form which had become obsolete and accordingly he imposed a penalty in a sum of Rs. 1,600 which was eight per cent of the tax payable on the value of imports plus freight against maximum penalty Which could have been imposed up to 40 per cent of the value of goods.;