This appeal challenges the validity of Collector (Appeal)'s order whereby he has disallowed the appeal of the appellant.
2. Briefly, facts of the case as reported are that during the course of audit of the appellants for the periods 2004-05 and 2005-06, various discrepancies/illegalities were found in the accounts of the appellants. The appellants were accordingly charged vide show-cause notice and the adjudicating officer, after taking into consideration the arguments .Made by both sides, held that the charges against the appellants had been established. The operative part of the impugned order is reproduced as under:- "I, am therefore, constrained to conclude that the respondent has nothing to offer in defence against the charges mentioned in show-cause notice hence the case is decided ex parte on the facts available on the record and I hold that the charges mentioned in the show-cause notice have been established. I have reached at the conclusion that delay in payment of amount as mentioned in the show-cause notice is proved and violation of Section 73 of the Sales Tax Act, 1990 is established. I therefore, order to recover the amount of tax as mentioned in the show-cause notice 36(1), 11(2) alongwith default surcharge under Section 34 of the Sales Tax Act, 1990.
Furthermore, I impose a penalty under Section 33(16) of the Sales Tax Act, 1990 which should also be recovered from the respondent."
An appeal against the said order was filed before Collector (Appeals), who while appeal, observed as follows:- "I have examined the case record and given due consideration to the arguments made before me.
The appellants have clearly admitted that they are unable to produce the requisite documents/record for the reason that the same have been lost by them. Thus, the department's case stands fully established. The other arguments advanced by the appellant's counsel, reproduced above, are largely irrelevant. Therefore, I hold that the impugned order is correct in law and on facts and requires no interference. The appeal is rejected accordingly."
3. The vires of this order have now been challenged by the appellant before us. It is contended by the learned AR of the appellant that:- "It is admitted in Para No. 1(i) of the Order in Original No. 355 of 2008, dated 24.9.2008 that the registered person has made all the payments through cheque but after the stipulated time period.
It does not mean that my client's total input is being disallowed, hence in the absence of application of law it cannot be termed as a quasi judicial order and is liable to be set aside.
The learned Collector (Appeal) has already decided a similar case of the same client in its favour through Order in Appeal No. 367 of 2009 dated 9.6.2009.
4. Rival parties have been heard and the case record examined. The appellant was charged that he did fail to- make payments through banking and financial transactions and as such he was not entitled for claiming adjustment of tax paid. He did fail to explain the reason of failing to do so and accordingly these charges against him were established and the adjudicating officer vide his order refused the ground of appeal to adjust tax paid and in addition imposed a penalty of Rs. 5,000/- and default surcharge @ 1% per month and @ 5% for the following months. The said order was challenged before the Collector (Appeals). According to Collector (Appeals), the appellants failed to produce any documentary evidence in support of his claim. Accordingly, appeal was rejected.
Even at this stage, the appellants have failed to produce any documentary evidence on the basis of which he could support the claim made by him. In these circumstances,, it is evident that the appellants did commit the violations of the provisions of the Sales Tax Act, 1990 and were engaged in activities which were not permissible within the framework of law. In these circumstances, there is no merit in the appeal and the same is accordingly rejected.