J.M. BAKSHI Vs. COMMISSIONER OF SALES TAX

JUDGEMENT

(1.) This revision is directed against the order of the Tribunal, dated August 28, 1992 relating to the assessment year 1988 -89.

(2.) THE brief facts of the case are that the applicant was engaged in the business of providing cranes on hire, having its office at 16, Babrala, Bombay. As per the agreement with M/s. Tata Chemicals Ltd., for providing one crane on hire, the applicant had dispatched one crane bearing registration No. HR -29 -1716 against builty No. 1036, dated February 13, 1990. For the import of the said crane M/s. Tata Chemical Ltd., had given one form 31 No. FW 89 -0211689. At the check -post, driver of the vehicle submitted the consignment note, builty, insurance cover note and form 31. The check -post officer seized the vehicle on the ground that under the contract for hire, the applicant was owner of the vehicle, and therefore, form 31 should be of applicant and not of M/s. Tata Chemical Ltd. In pursuance of the seizure order a penalty proceeding under Section 15 -A(1)(o) was initiated. Reply to show cause notice was not accepted and a sum of Rs. 1,58,400 was levied towards penalty under Section 15 -A(1)(o). The applicant filed appeal before the Assistant Commissioner which was allowed and penalty order was quashed. The Commissioner of Sales Tax filed appeal before the Tribunal which was allowed and the order of first appellate authority was set aside and penalty order was restored. Being aggrieved by the order of the Tribunal, the present revision has been filed.

(3.) THE contention of learned Counsel for the applicant is that the issue involved is squarely covered by the division Bench decision of this Court in case of Aster Technologies Private Ltd. New Delhi v. State of U.P. reported in 1990 12 STR 56 and learned single Judge judgment in case of Godfrey Philips India Ltd. Ghaziabad v. Commissioner of Sales Tax U.P. reported in 1992 UPTC 902 and by the latest judgment in case of Western India Enterprises Ltd. Delhi v. Commissioner of Sales Tax U.P. Lucknow, reported in 2003 23 NTN 564, and in case of Parry and Co. Ltd. New Delhi v. Commissioner of Sales Tax reported in 2004 138 STC 437; 2003 UPTC 742. It is submitted that before the Check -post Officer all the necessary documents, namely, consignment note, builty, insurance cover note were submitted and form 31 issued by M/s. Tata Chemical Ltd., was also submitted. It is further submitted that in pursuance of the agreement, crane was to be provided on hire to Tata Chemical Ltd., and, therefore, for the import of such vehicle Tata Chemicals had rightly given form 31, and in any view of the matter, no case of any attempt to evade the tax is made out by the assessing authority or Tribunal which is necessary for levying the penalty under Section 15 -A(1)(o). Learned Standing Counsel relied on the judgment of the Tribunal.