- (1.) This appeal has been preferred by the State 1 under section 68 of the Punjab Value Added Tax Act, 2005 (in short, "the Act") against the order dated January 10, 2013, annexure A6, passed by the Value Added Tax Tribunal, Punjab (in short, "the Tribunal"), in Appeal No. 228 of 2012 filed by the respondent under section 62 of the Act, proposing to raise the following substantial questions of law: "(1) Whether the order passed by the Tribunal is sustainable in law? (2) Whether the Tribunal was justified in setting aside the penalty order with direction to the Assistant Excise and Taxation Commissioner to refer the case to the Assessing Authority for considering the rate of tax applicable to the goods without ascertaining as to whether those goods are available with the assessee or not? (3) Whether the Tribunal has wrongly applied the judgment in the case of 'Xcell Automation v. Government of Punjab, 2007 5 VST 308 to the facts of the present case?" A few facts relevant for the decision of the controversy involved, as narrated in the appeal may be noticed. Vehicle No. UA-07P-2004 driven by Shri Mohammed Ali son of Shri Mehmood Ali loaded with inverters reached at the ICC Centre, Shambhu (Import), District Patiala on April 29, 2007. The driver presented the documents before the Excise and Taxation Officer (ETO) on duty which showed 100 pieces of inverters (600 VA) and 613 pieces of UPS (600 VA), (800 VA) and (400VA). However, on physical verification of the goods, it was actually found that those were all 713 pieces of inverters out of which 17 were big pieces and the remaining, were small in capacity. The statement of the driver was recorded. The officer felt that since the description of the goods mentioned on the documents did not match with the actual goods, the covering documents could not be accepted to be genuine and proper and also there was evasion of tax, because inverters were taxable at the rate of 12.50 per cent whereas the UPSs were taxable at the rate of four per cent. The driver of the vehicle could not explain the position. The goods were detained under section 51(6)(a) of the Act for verification from the books of account of the dealer. Notice was issued to the owner to appear before the detaining officer on May 1, 2007 along with their books of account. The Assistant Excise and Taxation Commissioner (AETC) after examining the documents and the entire record imposed a penalty of Rs. 7,54,726 under section 51(7)(b) of the Act vide order dated May 24, 2007, annexure Al. Aggrieved by the order, the respondent filed appeal under section 62 of the Act before the Deputy Excise and Taxation Commissioner (DETC). Vide order dated August 26, 2009, annexure A2, the DETC remanded the case to the AETC for passing a fresh order. The AETC vide order dated April 21, 2010, annexure A3, again imposed penalty of the same amount. The respondent again filed appeal before the DETC who vide order dated August 19, 2011, annexure A4, remanded the case to the AETC for deciding the matter afresh keeping in view judgment of the Tribunal in Appeal No. 305 of 2010. The respondent instead filed appeal before the Tribunal and also challenged the remand orders passed by the DETC. Vide order dated January 10, 2013, annexure A6, the Tribunal disposed of the appeal by directing the AETC to refer the case to the assessing authority for deciding the rate of tax applicable to the goods who would be at liberty to obtain expert opinion in respect of the device. However, the orders passed by the DETC were set aside. The Tribunal also held that the officers carrying out checking in exercise of powers conferred upon them under section 51 of the Act could not go into the disputed question of taxability. Hence the present appeal by the appellant-State.
(2.) We have heard learned counsel for the appellants-State and perused the record.
(3.) The learned counsel for the appellants submitted that the Tribunal had erred in canceling the penalty as the dealer had transported inverters and not UPSs. The dealer was, thus, liable to pay tax at the rate of 12.5 per cent whereas the tax on the UPSs was leviable at the rate of four per cent.;