GOPAL ELECTRIC STORES Vs. COMMISSIONER

JUDGEMENT

(1.) This revision is by the assessee arising out of penalty proceedings. It appears that proceedings were initiated against the assessee on the ground that certain goods were found to be transported from Noida to Hapur, which were not accompanied by any bill, bilty or supporting documents. The revisionist in response to the show cause notice is stated to have placed materials to show that the goods were sent from Hapur to Noida, but the purchaser, who was also a registered dealer, refused to accept the goods, and the same were returned. It is claimed that while goods were returned, the vehicle broke down, and the goods were taken through another vehicle, and at the time of detention, relevant materials could not be shown. However, immediately thereafter all such materials were placed, and according to the revisionist, they have not been taken note of. Submission is that revisionist's reply along with relevant material furnished on 14th February, 1998, which was before the date of seizure, have been omitted from consideration.

(2.) The assessing authority as well as the Tribunal has observed that no reply was submitted in response to the show cause notice. The first appellate authority had waived penalty, which has been reversed by the tribunal.

(3.) Since the parties were on issue as to whether an explanation had been submitted by the assessee, prior to seizure, as such, the original records were summoned. Learned Standing Counsel has produced the records of assessment proceedings. From the order sheet maintained, it is apparent that a show cause notice was issued to the assessee on 7th February, 1998. It appears that an application was moved upon which time to submit reply was allowed till 15th February, 1998. The ordersheet further records that assessee along with its counsel appeared and submitted its written reply on 14.2.1998. Filing of the reply, therefore, is established on record. The tribunal as well as the assessing authority have non-suited the revisionist, on the ground that the assessee had failed to respond pursuant to show cause notice. The view so taken by the tribunal and the assessing authority is found to be contrary to the materials available on record. In such circumstances, the matter needs to be examined afresh, and the reply submitted by the petitioner is liable to be considered, before taking any decision in the penalty proceedings. The question of law is answered, accordingly.