COMMISSIONER TRADE TAX Vs. UMA EXPORT INDUSTRIAL ESTATE

JUDGEMENT

(1.) These five revisions are directed against a common order dated 4,4,1996, passed by the Trade Tax Tribunal, Aligarh in five connected second appeals. Since the common questions of fact and law arc involved, these revisions were heard together and are being disposed of by a common judgment. Five assessment years, namely, 1978-79, 1980-81, 1981-82, 1982-83 and 1983-84 are involved in these revisions. These revisions arise out of a penalty passed under Section 4-B(5) of U.P. Sales Tax Act.

(2.) The dealer/opposite party is manufacturer of conduit pipes and it obtained recognition certificate under Section 4-B of the U.P. Sales Tax Act (hereinafter referred to as the Act) for the purpose of manufacturing of the specified goods, ( namely, electrical goods ) as mentioned in entry No. 14-A of the relevant notification issued under Section 4-B of the Act. The dealer/opposite party was authorized to purchase the raw material at confessional rate of tax or without payment of tax for the manufacturing of specified goods by issuing Form 3-B. The assessing officer found that in all these assessment years the dealer/opposite party has misused Form 3-B in purchasing the raw material. The raw material purchased against Form 3-B was not utilized in manufacture of the specified goods but in the manufacturing of conduit pipes, which according to the assessing officer was not electrical goods (namely the specified goods). A show cause notice under the aforesaid Section 4-B (5) of the Act was given in respect of assessment years. In reply to the show cause notice it was not disputed by the dealer/opposite party that it manufactured conduit pipes. It came out with the case that the conduit pipe is electrical fitting and as such it has not violated the provisions of Section 4-B (5) of the Act. A plea of limitation for initiating the proceedings after such a long time was also raised. The assessing officer after considering the reply of the show cause notice and after affording an opportunity of hearing to the dealer/opposite party levied the penalty under Section 4-B (5) of the Act on the finding that the dealer/opposite party has purchased the raw material at concessional rate of tax without payment of tax and utilized in the manufacture of conduit pipes, which is not an electrical goods. Consequently the penalty was levied in respect of all the five assessment year, presently involved in these revisions. The Assistant Commissioner (Judicial) Sales Tax by a common order dated 20th June, 1992 decided the appeals filed by the dealer/opposite party against the penalty orders. It has come to the conclusion on the basis of Notification No. ST-II-5784/X-10 (1) dated 7.9.1981 and Notification No. 7218 dated 30th September, 1977 that the junction box and conduit pipes manufactured by the dealer/opposite party are used in electrical fittings and as such they are accessories to the electrical goods. The Commissioner of Trade Tax unsuccessfully challenged the order of the first appellate authority before the Tribunal in second appeals. The Tribunal by the order under revision dismissed all the five second appeals filed by the department on the ground that the dealer/opposite party has not concealed any fact, nor it has made any misrepresentation in as much as it has disclosed in the registration form and in the monthly returns that the dealer is manufacturing the conduit pipes fittings also in addition to the electrical goods. The Tribunal found that it does not make any difference if in the regular assessment proceedings the conduced pipes have not been treated as electrical goods in the regular assessment proceedings and the conduit pipes have been taxed as such.

(3.) Heard learned counsel for the parties and perused the record.