BASU ENTERPRISES Vs. DY. COMMISSIONER

JUDGEMENT

(1.) THIS appeal is directed against the order dated 22 -06 -2007 passed by the Ld. Dy. Commissioner, Commercial Taxes (Appeals) (Appellate Authority), Jammu (herein after called Appellate Authority in short) under section 72 of the VAT Act, 2005, (hereinafter called Act in short) whereby he has confirmed the order of penalty dated 21 -12 -2005 passed by the Assessing Authority, Commercial Taxes, Circle -Checkpost, Lowermunda (hereinafter called Assessing Authority in short) under section 67(5) and 67(10) of the Act. At the outset I deem desirable to refer to the relevant facts leading to filing of appeal of the appellant before Appellate Authority under section 72 of the Act and before this Tribunal under section 73 of the Act. On 05 -12 -2005 the driver Gopal Singh approached the office of Assessing Authority Check post Lower Munda for clearance of his vehicle bearing registration No. PB07B -3982 and produced challan of M/s. Ajanta Road Carrier, 104 -D, Nehru Market, Ware House, Jammu No. 3956 dated 05 -12 -2005 and bill of M/s. Basu Enterprises, Phase -III, Gangyal, Jammu bearing Tin No. 01901070471. The contents mentioned on both the documents were B.A. wire in 253 pieces weighting 12445 kgs and the goods were consigned to M/s. Srinagar H/W Store Srinagar, Baghi Ali Mardan Srinagar bearing Tin No. 01642050217. The vehicle was physically checked and was found loaded with barbed wire instead of B.A. Wire as mentioned in the documents.

(2.) THE Assessing Authority found the activity of both the consignor and the consignee are registered with the Commercial Tax Deptt for the manufacture of barbed wire with B.A. wire raw material. Thus seized the goods under sub -section (5) of the section 67 on 08 -12 -2005. The Assessing Authority after served notice required under section 67(5) passed penalty order. The same was challenged before the Ld. Appellate Authority who upheld the same.

(3.) THE appellant submits that he has received an order from M/s. New Srinagar Hardware Store, Srinagar for supply of B.A. wire and another order was received from M/s. Bharat General Store, Rajouri for supply of Barbed wire. The two consignments were sent alongwith Bill No. 219 dated 05 -12 -2005 and 220 dated 05 -12 -2005 to M/s. Janta Road Carrier ware House, Jammu. On 05 -12 -2005 from the godown of M/s. Janta Road Carrier, Ware House, Jammu Gopal Singh owner of truck No. PBO & D -3982 loaded one consignment for M/s. Srinagar Hardware Store, Srinagar and carried transported the goods to Srinagar, when Driver reached Lower Munda Checkpost, he presented the documents for clearance to sales tax authorities, there on checking it was found that while the bill is regarding B.A. Wire actually Barbed wire was found in the truck. Thereon goods were seized and notice under section 67(5) for imposing of penalty and under section 67(10) for furnishing of security were served upon Sh. Gopal Singh. Regular reply to said notice was filed by the Manager of Basu Enterprises. It was explained before the Assessing Authority that due to the error of the transporter the goods meant for Bharat General Store, Rajouri have been transported for new Srinagar hardware Store, Srinagar while the goods were meant for New Srinagar Hardware Store Srinagar have been transported to M/s. Bharat General Store, Rajouri. It was also stated that the goods sent to M/s. Bharat General Store, have been returned by the said party on the grounds that they have placed supply of Barbed wire but the goods sent to them are B.A. wire.