INDIAN TRADING COMPANY Vs. COMMISSIONER OF TRADE TAX

JUDGEMENT

(1.) In these trade tax revisions the applicant/revisionist preferred Under Section 11 of U.P. Trade Tax Act, 1948, (in short called the "Act") against the order dated April 27, 2002 passed in Second Appeal No. 55 of 2002 (2001-2002) and order dated April 27, 2002 passed in Second Appeal No. 56 of 2002 (2001-2002) Under Section 13-A(6) of the Act. 1. Heard Sri Kunwar Saxena, learned counsel for the applicant/ revisionist and Sri B.K. Pandey, learned Standing Counsel for the respondent.

(2.) The brief facts necessary for adjudication of the present revisions are that the applicant/revisionist is a registered dealer of U.P. Trade Tax Act as well as Central Sales Tax Act and has imported nylon fishnet fabrics from outside the State but the consignment was detained and seized on October 31, 2001 by the Trade Tax Officer, Sahayata Kendra, Chaukhata, district Allahabad under purported exercise of powers Under Section 28-A of the Act on the ground that the aforesaid consignment was not accompanied with form XXXI. The applicant preferred representation under proviso to section 13-A(6) of the Act before Assistant Commissioner, Pravartan, Trade Tax, Allahabad stating that nylon fishnet fabrics, being rayon fabrics, were exempt from payment of trade tax as "textiles" under Notification No. 303 dated February 1, 1989 issued Under Section 4 of the Act. The aforesaid representation was rejected by the Assistant Commissioner, Trade Tax, Allahabad, on January 7, 2002 (annexure-3) on the ground that nylon fishnet fabrics were not textiles and therefore liable of tax. The applicant/revisionist preferred second appeal Nos. 55 of 2002 and 56 of 2002 before the Trade Tax Tribunal. The Tribunal in its order dated July 24, 2002 has partly allowed the appeal of the applicant/revisionist and has modified the order of trade tax officer as well as Assistant Commissioner (Enforcement), Trade Tax, and has directed to deposit cash or bank guarantee equal to the tax involved and released the goods in favour of the applicant/revisionist.

(3.) Learned Tribunal in its order dated April 27, 2002 has observed as to whether the commodity being imported without form XXXI was taxable or exempt from tax. There was no dispute that the goods had been properly declared at the check-post and nothing had been suppressed. It was further stated that in view of the different orders passed earlier by the departmental authorities themselves, the applicant-assessee bona fidely believed that the aforesaid commodity was not liable to tax and it was for this reason only that the consignment did not accompany with form XXXI. The goods were being imported by a registered and genuine dealer. The Tribunal took the view that the aforesaid question as to whether it was liable to tax or not could be decided only at the time of assessment.