- (1.) M. C. AGARWAL, J. This revision petition under section 11 of the U. P. Trade Tax Act, 1948 (hereinafter referred to as "the Act") is directed against an order dated March 21, 1998 passed by the Trade Tax Tribunal, Ghaziabad, whereby it dismissed the dealer's second appeal No. 636 of 1997 for assessment year 1995-96 against the levy of a penalty of Rs. 1,37,064 under section 15-A (1) (o) of the Act.
(2.) I have heard Sri Piyush Agarwal, learned counsel for the revisionist and Sri B. K. Pandey, learned Standing Counsel for the Commissioner-respondent. The facts of the case are that on May 3, 1995 a consignment of 10 barrels of glycerine and 1,000 kg. of pentreythrial was being sent by M/s. Aureole Rubber (P) Ltd. , Delhi, to the revisionist situate at Noida. The consignment was being carried in a tempo but was not accompanied by form XXXI. Although the other papers, i. e. , the bill, invoice, gate pass, etc. , were available with the driver of die tempo. The vehicle was checked by the Trade Tax Officer, Mobile Squad II, Noida, and the goods were detained as the consignment was being carried in violation of section 28-A of the Act. The consignor aforesaid filed objection on May 6, 1995 contending that the goods were being supplied to the present revisionist in pursuance of its order dated May 3, 1995 and the purchaser had sent to it [m/s. Aureole Rubber (P) Ltd. , Delhi] a form XXXI No. 092979 which they forgot to deliver to the driver of the tempo. This contention was not accepted and the penalty in the sum of Rs. 1,37,064 was levied on the said consignor, who preferred appeal No. 779 of 1995 before the Assistant Commissioner, who by order dated October 23, 1996 allowed the appeal and cancelled the penalty. His finding was that, according to the terms of the contract the goods had to be delivered at the place of the purchaser who had sent a form XXXI and there was no intention to evade tax. The Revenue did not challenge the said order of the Assistant Commissioner. The assessing officer of the present revisionist also initiated proceedings for the levy of penalty under section 15-A (1) (e) of the Act on the revisionist and levied the same amount of penalty holding that it was the obligation of the dealer, i. e. , the present revisionist to ensure that the consignment was accompanied by all papers. The dealer preferred first appeal and second appeal both of which have failed.
(3.) AS is evident, the penalty in question has been levied and sustained only on the ground that the consignment was not accompanied by form XXXI. The finding in the earlier proceedings was that the seller had to supply the goods at the business place, i. e. , the factory of the purchaser, M/s. Noida, Polychem Pvt. Ltd. This was the explanation offered by the seller. The assessing officer of the present revisionist has made a reference to this in the order dated April 23, 1996 levying penalty under section 15-A (1) (o) of the Act, copy of which is annexure 4 to the revision petition. In the penalty proceedings, the dealer's explanation was that the default, if any, was on the part of the seller, M/s. Aureole Rubber (P) Ltd. , because the purchaser had sent form XXXI to it. AS stated above, the Trade Tax Officer has held the present dealer to be responsible. According to him, it should have ensured that form XXXI accompanied the consignment. It may be mentioned here that when the goods were seized it was the seller aforesaid who filed objections and who ultimately deposited the security demanded and in whose favour the goods were released by the Trade Tax Officer, Mobile Squad. It means that the said M/s. Aureole Rubber (P) Ltd. , was the owner of the goods when they were detained. Section 28-A of the Act requires that any person (hereinafter in this section referred to as the importer) who intends to bring, import or otherwise receive, into the State from any place outside the State - shall obtain the prescribed form of declaration. Sub-section (2) of section 28-A provides that the importer shall furnish to the consignor the declaration in the prescribed form in duplicate duly filled in and signed by him and the driver or any other person-in-charge of any vehicle carrying any such goods shall carry with him the copies of such declaration - and shall before crossing any check-post or barrier established under section 28, deliver one copy of such declaration to the officer-in-charge of such check-post. Since the revisionist had placed an order for the supply of the goods at his place, he was an importer within the meaning of section 28-A of the Act and the only obligation was to furnish to the consignor a declaration in the prescribed form. Admittedly, the prescribed form is form XXXI. The purchaser having furnished the form to the consignor it was for the consignor to hand over the same to the transporter with instructions to carry the same along with the goods. In the present case the contention of the present assessee as well as that of the consignor was that the present dealer did furnish form XXXI to the consignor. This contention was accepted in the proceedings against M/s. Aureole Rubber (P) Ltd. and the assessing officer of the present assessee has also not negatived this contention.;