Narain Trading Co. vs Commissioner of Trade Tax

Surya Prakash Kesarwani, J.—Heard Sri Krishna Agarwal, learned counsel for the applicant revisionist in Sales/Trade Tax Revision No.525 of 2008, Sri Suyash Agarwal, learned counsel for the applicant-revisionist in Sales/Trade Tax Revision No.21 of 2005 and Sri B.K. Pandey, learned standing counsel for the respondents.

Trade Tax Revision No.525 of 2008 arises from the impugned order of the Tribunal dated 28.8.2002 in Second Appeal No.734 of 2001 passed by the Member, Trade Tax Tribunal, Bench-IV, Agra relating to penalty under section 15-A(1) (o) for the Assessment Year 1999-2000.

Trade Tax Revision No.21 of 2005 arises from the impugned order of the Tribunal dated 30.10.2004 in Second Appeal No.734 of 2001 passed by the Member, Trade Tax Tribunal Bench-IV, Agra relating to assessment for Assessment Year 1999-2000. By the impugned order, the Tribunal has reduced addition in turn over from Rs.70 lacs as made by the assessing authority to Rs.17 lacs.

Briefly stated the facts are that a tanker bearing Registration No.MP-06-E 1997 loaded with refined soya oil was found standing at the Petrol Pump in front of Police Chowki ''UDI'' Etawah at about 9.00 a.m. The Trade Tax Authorities checked the aforesaid tanker and recorded statement of Sri Prem Singh, the driver of the tanker, who made a statement on oath that the goods were loaded in the tanker from Indore (MP) on 11.10.1999 and he proceeded from there at about 5.00 p.m. and at about 9.00 p.m. in the night of 12.10.1999 he reached at Mehgaon (M.P.), where son of Vippy Lala of Porsa met him and handed over to him GR dated 12.9.1999 of Sri Bajrang Trading Company, Fatehabad, Agra and took away the documents relating to the goods in question, which were issued at Indore. He further stated that he crossed Chambal bridge on 13.10.1999 at about 3.45 a.m. after obtaining toll slip on payment of Rs.30/-, which was paid by the Muneem. The tanker crossed from Udi Barrier at about 4.00 a.m. and when he came at Etawah-Udi Road, he came to know that checking by Trade Tax Authorities is going on and for that reason he stopped the tanker at the Petrol Pump. The tanker was caught by Trade Tax Authorities at about 9.00 a.m. On checking a billty of M/s Narain Trading Company, Fatehabad, Agra, dated 12.10.1999 and toll slip were found. This prima-facie, transpired that the goods in question were being imported from Indore (M.P.) and the bills accompanying the goods were merely issued to cover up the transaction and to show it as Intra-state transaction. Consequently, the goods were detained and a show cause notice was issued requiring the person In charge of the vehicle to show cause as to why the goods be not seized. A brief explanation was submitted in which it was stated that the proprietor of the firm has gone out of station and the Muneem has instructed to get released the goods on deposit of security. Consequently, the security of Rs.1,80,000/- was deposited and the goods were released.

Subsequently, penalty proceeding under section 15A (1)(o) of the Act, was initiated and a notice was issued. A reply dated 29.12.1999 was submitted by the assessee to the notice dated 26.11.1999. In paragraph-3 of the reply the assessee took the stand that the authorities have procured signature of the driver of the tanker on a blank paper and thereafter they had written on it as a statement of the driver. In paragraph-4, he stated that the toll tax receipt does not relate to his transaction. The assessee further submitted that his firm is registered at Agra. The goods in question were being sent to M/s Om Prakash Vijay Kumar of Gorakhpur. The assessing authority considered the reply of the assessee but did not find it satisfactory. Consequently, it imposed penalty of Rs. 1,80,000 by order dated 4.1.2000. The assessee preferred First Appeal No.399 of 2000 before the Deputy Commissioner (Appeals)-II, Agra. He also submitted a written arguments before the appellate authority in which he admitted the aforesaid toll receipt relating to the tanker in question but stated that it is a receipt which was issued, when the empty tanker crossed Chambal bridge. The appellate authority, after well discussing the facts, dismissed the appeal by order dated 30.8.2001.

Aggrieved with this order, the assessee preferred Second Appeal No.734 of 2001 before the Tribunal, which was partly allowed by the impugned order reducing penalty from Rs.1,80,000/- to Rs.50,000/-. Aggrieved with the aforesaid order of the Tribunal, the assessee has preferred the present revision No.525 of 2008.

Learned counsel for the asssessee submits that there was no basis for imposition of penalty inasmuch as, the goods were duly recorded in the regular books of accounts of the assessee. At the time when the tanker was intercepted, it was found accompanied with proper and genuine documents namely, the bill of the assessee and billty etc. No infirmity in the documents were found. The Trade Tax Authorities compelled the driver and obtained his signature on a blank paper and thereafter written at their own, which cannot be used against the assessee. No adverse inference can be drawn on the basis of such paper.

On a query as to what was the distance between the place where the tanker was checked and the place of business of the assessee at Agra, learned counsel for the assessee replied that it would be between 100-125 Kms. However, he submitted that after the empty tanker crossed the Chambal bridge at about 3.45 a.m., it came to the business place of the assessee at Agra, where oil was loaded in it and thereafter it proceeded with genuine documents and was checked near Udi Police Chowki Bypass, Etawah. He further submitted that the entire penalty order is based on no material and, therefore, the impugned order of Tribunal upholding penalty to the tune of Rs.50,000/- deserves to be set aside.

Learned Standing Counsel submits that as per own admission of the assessee, the toll receipt was issued at Chambal bridge at about 3.45 a.m. The driver made the statement on oath in which he disclosed detail particulars right from the loading to the goods from Indore till it was intercepted at Etawah. He submits that even as per own stand taken by the assessee it is evident that the goods were actually not loaded from the business place of the assessee, but were being transported from Indore and the entire papers were given to the driver of the truck so as to cover up the transaction and to evade payment of tax. He supports the impugned order of the Tribunal.

I have carefully considered the submissions of learned counsels for the parties.

It is wholly undisputed that the tanker in question crossed the Chambal bridge at about 3.45 a.m. on 13.10.1999. According to the assessee it crossed the Chambal bridge after coming from M.P. but it was in empty condition. After crossing the bridge it loaded the goods from the business premises of the assessee at Agra and thereafter it was travelling in the same direction for destination at Gorakhpur. Bill No.60 dated 12.10.1999, billty and toll slip were accompanying the goods in question when it was checked by the authorities. This shows serious conflict between the stand taken by the assessee. It is admitted that the tanker crossed the chambal bridge at 3.45 a.m. on 13.10.1999 in empty condition and thereafter it loaded the goods from the assesseee''s business premises at Agra, while the bill of the assessee found with driver was of a prior date i.e., 12.10.1999 before the tanker came for loading the goods. It was wholly impossible to travel about 100 Kms. from Etawah to Agra and the return journey of the same distance after loading 15 metric tones oil within four or five hours.

A concurrent finding of fact has been recorded by the authorities including the Tribunal that the statement of the driver of the truck was recorded on oath and he narrated the events in detail starting from the place at Indore where the goods in questions were actually loaded and terminating with the point where the tanker was intercepted. The Tribunal has found that the statement of the driver was not under any pressure, but it was given by him on oath. Under the circumstances, it was established by the department that the goods were imported by the assessee from Indore (MP) from undisclosed dealer and the same was attempted to be transported under the cover of bill issued by the assessee from Agra with intent to evade payment of tax. Thus, I don not find any infirmity in the impugned order of the Tribunal upholding imposition of penalty of Rs.50,000/- under Section 15A (1)(0) of the Act.

Since, this Court has upheld the penalty and found the transaction in question to be evaded sale of the assessee and as such determination of turn over of imported refined oil by the assessing authority as upheld by the Tribunal to the extent of Rs. 17 lacs is wholly justified. The Tribunal itself has considered the facts in detail and substantially reduced the turnover of imported reined oil from Rs. 70 lacs to 17 lacs. Under the circumstances, I do not find any good reason to interfere with the impugned order of Tribunal. No question of law arises. Both the revisions lack merit and deserve to be dismissed.

In result, both the revisions fail and are hereby dismissed.