SHIVARAJ TOBACCO COMPANY Vs. COMMISSIONER, TRADE TAX

JUDGEMENT

(1.) THESE fifteen 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 April 27, 2001 relating to the periods May, 1997 (UP), June, 1997 (U. P. and Central), July, 1997 (U. P. and Central), August, 1997 (U. P. and Central), September, 1997 (U. P. and Central), October, 1997 (Central), November, 1997 (Central), December, 1997 (Central), January, 1998 (Central), February, 1998 (Central) and March, 1998 (Central), by which the Tribunal has confirmed the penalty levied under Section 15A(1)(a) of the Act.

(2.) BRIEF facts of the case are that the applicant was carrying on the business of pan masala containing tobacco, which is commonly known as gutkha in the brand name of "badshah pasand gutkha". The applicant filed monthly returns as required under Rule 41(1) of the U.P. Trade Tax Rules, 1948 (hereinafter referred to as, "the Rules") for the aforesaid disputed period and claimed exemption on the entire turnover and had not admitted any liability of tax. Since the liability of tax had not been admitted, no tax was deposited. The assessing authority initiated the penalty proceedings under Section 15A(1)(a) of the Act on the ground that the gutkha was not exempted from tax, inasmuch as pan masala including tobacco has been excluded from tobacco product and, therefore, the applicant should have deposited the tax at 10 per cent applicable to the unclassified items. Since tax was not deposited the penalty was levied. Being aggrieved by the penalty orders, the applicant filed appeals before the Deputy Commissioner (Appeals), Trade Tax, Kanpur. The Deputy Commissioner (Appeals) dismissed all the appeals. The applicant filed appeals before the Tribunal. The Tribunal by the impugned order dismissed all the appeals.

(3.) THE learned Counsel for the applicant submitted that the applicant had regularly filed the monthly returns within the specified time as required under Rule 41(1) of the Rules for the aforesaid disputed months. In the monthly returns, the liability of tax on the turnover of gutkha had not been admitted and accordingly, no tax was deposited. He submitted that the applicant had not admitted the tax in the monthly returns on the ground that gutkha being declared commodity under Section 14(ix) of the Central Sales Tax Act and was also subjected to additional excise duty under Tariff item 2404 of the Central Excise Tariff, therefore, such gutkha could not be taxed under the Act. He submitted that the various dealers dealing in gutkha have filed writ petitions before the Division Bench of this Court challenging the levy of tax, which are still pending consideration. He submitted that various dealers have been exempted from tax on the turnover of gutkha by the assessing authority. However, so far as the applicant is concerned, since business has been closed despite the effort being made, the information could not be gathered whether the present applicant has been subjected to tax or not ultimately. He submitted that in the case of Commissioner of Trade Tax, U.P., Lucknow v. Anand Kumar Proprietor, Kanpur reported in, [2006] 31 NTN 436 no tax has been assessed by the assessing authority on the turnover of gutkha and the penalty under Section 15A(1)(a) of the Act was deleted by the Tribunal and the order of the Tribunal has been confirmed by this Court.