COMMISSIONER, TRADE TAX Vs. RAGHUBAR (INDIA) LTD

JUDGEMENT

(1.) THESE five revisions under Section 11 of the U.P. Trade Tax Act, 1948 (hereinafter referred to as 'the Act') are directed against the order of the Tribunal dated July 31,1995 relating to the assessment years 1984 -85,1985 -86,1987 -88,1988 -89 and 1989 -90 under the U.P. Trade Tax Act, 1948.

(2.) DEALER /opposite party (hereinafter referred to as 'the dealer') was carrying on the business of vegetable ghee. It was sold in tin containers. It is claimed that separate price for vegetable ghee and tin containers were charged in the bill. Rate of tax of vegetable ghee was 10 per cent and tax on tin containers was four per cent. In the bill on the value of the tin containers tax at the rate of four per cent was charged and six per cent was further charged towards contingent liability refundable. In the return, dealer had deposited tax at the rate of four per cent only on the tin containers and retained six per cent which was charged towards contingent liability refundable. In the assessment proceeding, it was claimed that there was separate contract for vegetable ghee and tin containers and the price of tin containers was separately charged, therefore, the turnover of tin containers was liable to tax at the rate of four per cent and not at the rate of 10 per cent applicable to the vegetable ghee. The assessing authority, however, has not accepted the plea of the dealer and levied the tax on the value of the tin containers at the rate of 10 per cent which was applicable to the vegetable ghee. The first appeal filed by the dealer was allowed and the Tribunal has affirmed the order of the first appellate authority. Plea of the dealer has also been upheld by this Court in revisions. Thereafter, the assessing authority levied penalty under Section 15A(1)(qq) of the Act on the ground that the dealer had realised tax in excess of amount of tax due. It was held that the dealer realised 10 per cent tax while only four per cent had been deposited and retained six per cent. For the assessment years 1984 -85, 1985 -86 and 1989 -90, the first appellate authority allowed the appeal in part and reduced the penalty. For the assessment years 1987 -88 and 1988 -89, the first appellate authority allowed the appeal and remanded the matter back to the assessing authority. Against the order of the first appellate authority, the Commissioner of Trade Tax as well as the dealer filed appeals before the Tribunal. The Tribunal by the impugned order rejected all the appeals filed by the Commissioner of Trade Tax and allowed the appeals of the dealer and quashed the penalty levied under Section 15A(1)(qq) of the Act. The Tribunal held that for the assessment year 1981 -82, the assessing authority levied tax at the rate of 10 per cent on tin containers which was deleted by the first appellate authority and by the Tribunal. The department filed revision before the honourable High Court which was dismissed on September 12, 1988 and against the said order Special Leave Petition No. 16540 of 1989 was dismissed on April 12, 1990. The Tribunal was of the view that the rate of tax was in dispute which was finally settled on April 12, 1990 when the special leave petition has been finally dismissed by the apex court. The Tribunal further held that the amount has been charged towards contingent liability refundable and not as a tax. Heard learned Counsel for the parties.

(3.) I have perused the record. It appears that one Sri R.N. Agarwal was posted as Member Tribunal, Aligarh and normally the Bench was constituted which Sri R.N. Agarwal as one of the member. It appears that in the present cases, either in some of the cases first appeal was decided by Sri R.N. Agarwal as Deputy Commissioner (Appeals) or he has filed the appeal as Deputy Commissioner (Executive) before the Tribunal, therefore, he could not hear the appeals. The application for the preponement was moved on the ground that in the existing Bench, Sri R.N. Agarwal was not member and hence appeals could be heard. The applications were allowed and the date was fixed on July 27, 1995. However, on July 27, 1995 State representative moved adjournment applications which were rejected and detailed order was passed by the Tribunal which is as follows: File Dekhi, Aise Mukadamay may jab bhi sunwai kay liye atey hai aur sunwai honay lagati hai to vibhag key taraf say bina kisi adhar kay adjournment dey dee jati hai. Es prarthana patra say pahlay dinank 26.10.94 to A.C. (Assessment) kay na honay par prarthana patra vibhag key taraf say adjourn patra diya gaya. Es prarthana patra may 25.7.95 ko sambandhit patrawali mil gayee. Eskay bavjood do din may taiyyari nahi key gayee jabki yeh mukadamay Sri R.N. Agrawal say sambandhit hai aur eseeliye aisay mukadamay kay liye specially yeh bench gathit key gayee hai. Lekin aisey mukadamay vibhag karna nahi chahta hai. Yahi nahi vibhag kabhi bhi kisi mukadamay ko tayyar karkay nahi aata hai kyoki rozana ek naya S.R. en bench kay liye bheja jata hai. Asal S.R. Hg Rana ko D.C. (E) Chutti par Ghoshit kartay hai lekin voh chutti par nahokar dusray sarkari karyo mey Vyasta rakha jata hai. Uprokta pariesthi may aisee prarthana patro mey koi bal nahi hai. Kharij key jati hai.