COMMISSIONER TRADE TAX Vs. RAGHUNATH LAXMI NARAIN

JUDGEMENT

(1.) Present revision under Section 11 of U.P. Trade Tax Act (hereinafter referred to as 'Act') is directed against the order of Tribunal dated 05.12.1996 relating to assessment year 1986-87 under the U.P. Trade Tax Act.

(2.) Dealer/Opposite Party (hereinafter referred to as "the Dealer") was involved in the business of Condiments Spices and General Merchandize goods etc. During the year under consideration, dealer claimed to have made export of Spices for Rs. 14.39.348.20 to Nepal. During the course of assessment proceedings, dealer had produced books account, Custom Certificate and also Transport receipt. Assessing Authority after examining the books of account Transport receipt and Custom Certificate, accepted the claim of export and granted exemption thereon. Subsequently, a proceeding under Section 21 of the Act was initiated on the ground that the Custom Certificate furnished by the dealer, was found to be forged and that could not be issued by the Custom Authority of Nepal. In the proceedings under Section 21 of the Act, a Show-cause-notice was issued. In reply to the Show-cause-notice, it was stated that in pursuance of the order received from Nepal party, goods were dispatched and delivery of the goods were taken by the Agent/authorized representative of Nepal party at Indo-Nepal border and from there, goods were carried to Nepal by such Agent/authorized representative. He submitted that the Truck, in which, the goods had been dispatched to Indo Nepal border could not go to Nepal. Copy of Form-B, Cess receipt, Transport receipt and the books of account etc. were produced before the Assessing Authority. The Assessing Authority rejected the claim of the dealer on the ground that in the statement, dealer stated that the delivery of the goods were given to the Agent/authorized representative at Nepal border and thereafter, goods were being transported by the Agent/authorized representative to Nepal. It was also stated that the date of issue of Form-B was much after the date of bills. It was also found that the Custom Certificates, which were filed in support of claim of export, were found forged. On these facts, it has been held that it was the case of sale for export and not in the course of export and accordingly, exemption had been refused and sale had been assessed to tax within the State of U. P. treating it as intrastate sale. Against the order passed under Section 21 of the Act, dealer filed appeal before the Deputy Commissioner (Appeals), Trade Tax, Varanasi. The Deputy Commissioner (Appeals), Trade Tax, Varanasi vide its order dated 04.5.1992, allowed the appeal. The Deputy Commissioner (Appeals), Trade Tax, Varanasi held that the dealer had submitted Form-B (Export Bill) obtained from the Custom Authority. Sonauli. Cess duty receipt and order of Nepali dealers. On these materials, the Deputy Commissioner (Appeals), Trade Tax, Varanasi held that even if the Custom Certificates were found forged, but it had been established that the goods had gone to Nepal in the course of export. The Deputy Commissioner (Appeals) has also accepted the claim of dealer that it had not stated that the delivery of the goods was given at the Shop to the Agent/authorized representative of Nepal party. Aggrieved by the order of Deputy Commissioner (Appeals), Trade Tax, Commissioner of Trade Tax filed appeal before the Tribunal. Tribunal by the impugned order, rejected the appeal and confirmed the order of the First Appellate Authority.

(3.) Heard learned Counsel for the parties.