STATE OF TAMIL NADU Vs. SHIYAL CHEMICALS

JUDGEMENT

(1.) THE department is the petitioner herein. The assessee, Shiyal Chemicals is a dealer in chemicals and registered under the Central Sales Tax Act and the assessee purchased a machinery for a sum of Rs. 18, 262.40 by issuing C forms during the assessment year 1978 -79. The assessment officer levied a penalty at 1 1/2 times the tax due of 10 per cent on the above turnover treating the above purchases by issuing C forms in contravention of the provisions of section10(b) of the Central Sales Tax Act, 1956. On appeal, the Appellate Assistant Commissioner reduced the penalty to Rs. 1, 826. Aggrieved by this order the assessee filed an appeal before the Appellate Tribunal. The Appellate Tribunal considering the facts that the assessee has already intimated to the department by a letter dated July 21, 1971 for inclusion of machinery in the registration certificate, deleted penalty levied by the Appellate Assistant Commissioner. It is against that order, the present revision has been filed by the department.

(2.) LEARNED Additional Government Pleader (Taxes) submitted that the department has established the conduct of the assessee in purchasing the machinery, while they were not included in the registration certificate. The assessee deliberately issued C forms for purchase of machineries even though, the assessee knew that the machineries were not enumerated in the registration certificate. Learned Additional Government Pleader (Taxes) further pointed out that the assessee has no proof to show that the letter dated July 21, 1971 was sent by the assessee. According to the Additional Government Pleader (Taxes) there is no evidence on record to show that the letter dated July 21, 1971 pertains to this matter. Therefore, the learned Additional Government Pleader (Taxes) submits that the Tribunal was not correct in deleting the penalty sustained by the Appellate Assistant Commissioner.

(3.) WE have heard the learned counsel for the assessee as well as the learned counsel for the department. It remains to be seen that the assessee is a registered dealer in chemicals. In the assessment year 1978 -79, the assessee purchased machineries for a sum of Rs. 18, 262.40, by issuing C forms. According to the assessee, he intimated to the department by letter dated July 21, 1971 for the inclusion of machineries in the certificate of registration. Therefore, according to the assessee, the purchase of machineries by issuing C forms does not reflect the blameworthy conduct on its part. The Appellate Assistant Commissioner in his order pointed out that he verified the records in the presence of the counsel for the assessee as well as the departmental representative. According to the Appellate Assistant Commissioner, he found that the letter dated July 21, 1971 has no connection or nexus with the subject -matter in issue. The assessee has not produced any positive evidence to show that a letter dated July 21, 1971 was sent requesting the assessing authorities to include the machineries in the registration certificate. Mere filing of a delivery book is not sufficient to show that a letter of such kind as pleaded by the assessee, would have been sent to the assessing authority. Therefore, in the absence of any positive evidence on the side of the assessee it is not possible to accept that the assessee sent a letter dated July 21, 1971 requesting to include the machineries in the registration certificate. Our attention was drawn to the decision of this Court in the case of Vijaya Electricals v. State of Tamil Nadu. According to the facts arising in that case, the certificate of registration granted to the appellant -dealer under the Central Sales Tax Act, 1956, authorised to purchase the machinery and electrical goods only. The appellant purchased the ball -bearings on the basis of C forms. On the ground that the goods purchased were not covered by the certificate of registration, the penalty was imposed on the appellant under section10A of the Act for an offence under section10(b) of the Act. While considering these facts, this Court has held :