@JUDGMENTTAG-ORDER
R. Sudhakar, J.@mdashThis revision is preferred against the order of the Sales Tax Appellate Tribunal, Main Bench, dated October 11, 2013 made in S.T.A. No. 26/12 and COP No. 6/12. The appellant-assessee is a dealer in food and drinks carrying on business in Chennai and assessed to self-assessment based on the return filed for the year 2008-09 under section 22(2) of the Tamil Nadu Value Added Tax Act, 2006 (for short, "the Act"). On verification of the records, the assessing officer found that the dealer had paid two per cent on the sale of food and drinks including sweets, savories, unbranded alcohol drinks and beverages in terms of section 7(1)(b) of the Act as applicable and also availed of input-tax credit on the purchase of the same at the rate of Rs. 1,01,919 (rupees one lakh one thousand nine hundred and nineteen only). The assessing officer was of the view that the dealer is not entitled to claim input-tax credit in view of specific provision, viz., section 7(2) of the Act and the same was reversed in the order in TIN: 33500640938/2008-09 dated October 22, 2010 and also levied a penalty of 100 per cent while reversing the input-tax credit. The abovesaid order of levying penalty was passed by the assessing officer in terms of section 27(4)(ii) of the Act.
2. Aggrieved by the order of the assessing officer, the assessee preferred an appeal to the Appellate Deputy Commissioner, who allowed the appeal by order dated February 6, 2012. The appellate authority while upholding the reversal of input-tax credit, took the view that there was no mens rea on the part of the assessee and, therefore, the penalty under section 27(4)(ii) is liable to be set aside. The Revenue went on appeal to the Appellate Tribunal and the Tribunal, while reversing the order of the appellate authority held that penalty is leviable, however, reduced the penalty to 50 per cent in terms of section 27(4)(i), and thereby upholding the Department''s plea that on wrongful availment of input-tax credit, penalty is imposable. Against which the present appeal.
3. Heard the learned counsel appearing for the appellant and perused the materials placed in the typed set of documents and also the relevant provisions of the Act and the Rules.
4. The facts, in the present case, are not in dispute. The assessee in this case had availed of input-tax credit and that the assessee falls under the provisions of section 7(1)(b) of the Act. It is not disputed even before the Tribunal as well as the appellate authority and the assessing officer that the assessee wrongfully availed of input-tax credit and fairly conceded that it has paid the tax demanded immediately thereon and, therefore, the Department ought not have imposed penalty and the above is the plea of the appellant-assessee before this court as well.
5. For better clarity, it will be useful to refer to the relevant sections 7(1)(a) and (b) and section 7(2) of the Act, which are extracted hereunder:
"7.(1) Notwithstanding anything contained in this Act, but subject to the provision of this Act,--
(a) every dealer shall pay tax on the sale of ready to eat unbranded foods including sweets, savories, unbranded non-alcoholic drinks and beverages served in or catered indoors or outdoors by star hotels recognized as such by Tourism Department of the State Government or Government of India and restaurants attached to such hotels at the rate of twelve and half per cent of the taxable turnover; and
(b) every dealer other than those mentioned in clause (a), shall pay tax on the sale of ready to eat un-branded foods including sweets, savories, un-branded non-alcoholic drinks and beverages served in or catered indoors or outdoors by hotels, restaurants, sweet-stalls, clubs, caterers and any other eating houses, at the rate of four per cent of the taxable turnover.
Explanation I.--For the purpose of computing the total turnover under this sub-section, the purchase turnover liable to tax under section 12 of this Act, shall be added to the sales turnover.
Explanation II.--For the purpose of computing the total turnover under this sub-section, the sales turnover of all business units in a common premises sharing the common kitchen or common employees shall be added to the sales turnover of the business unit having higher turnover.
(2) The dealer, who pays tax under clause (a) of sub-section (1), shall be entitled to input-tax credit on the goods specified in the First Schedule purchased by him in the State."
6. The corresponding provision for levy of penalty finds place in section 27(4)(i) and (ii) and for better clarity, they are extracted hereunder:
"27(1)(a). Where, for any reason, the whole or any part of the turnover of business of a dealer has escaped assessment to tax, the assessing authority may, subject to the provisions of sub-section (3), at any time within a period of five years from the date of final assessment order by the assessing authority, determine to the best of its judgment the turnover which has escaped assessment and assess the tax payable on such turnover after making such enquiry as it may consider necessary.
(b) Where, for any reason, the whole or any part of the turnover of business of a dealer has been assessed at a rate lower than the rate at which it is assessable, the assessing authority may, at any time within a period of five years from the date of order of assessment by the assessing authority, reassess the tax due after making such enquiry as it may consider necessary.
(2) Where, for any reason, the input-tax credit has been availed wrongly or where any dealer produces false bills, vouchers, declaration certificate or any other documents with a view to support his claim of input tax credit or refund, the assessing authority shall, at any time, within a period of five years from the date of order of assessment, reverse input tax credit availed and determine the tax due after making such an enquiry, as it may consider necessary:
Provided that no order shall be passed under sub-sections (1) and (2) without giving the dealer a reasonable opportunity to show cause against such order.
(3) In making an assessment under clause (a) of sub-section (1), the assessing authority may, if it is satisfied that the escape from the assessment is due to willful non-disclosure of assessable turnover by the dealer, direct the dealer, to pay, in addition to the tax assessed under clause (a) of sub-section (1), by way of penalty a sum which shall be--
(a) fifty per cent of the tax due on the turnover that was willfully not disclosed if the tax due on such turnover is not more than ten per cent of the tax paid as per the return;
(b) one hundred per cent of the tax due on the turnover that was willfully not disclosed if the tax due on such turnover is more than ten per cent but not more than fifty per cent of the tax paid as per the return.
(c) one hundred and fifty per cent of the tax due on the assessable turnover that was willfully not disclosed, if the tax due on such turnover is more than fifty per cent of the tax paid as per the return;
(4) In addition to the tax determined under sub-section (2), the assessing authority shall direct the dealer to pay as penalty a sum--
(i) which shall be in the case of first such detection fifty per cent of the tax due in respect of such claim; and
(ii) which shall be in the case of second or subsequent detections, one hundred per cent of the tax due in respect of such claim:
Provided that no penalty shall be levied without giving the dealer a reasonable opportunity of showing cause against such imposition.
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7. We find that on the admitted fact of wrongful availment of input-tax credit, the provisions of section 27(4)(i) and (ii) squarely mandates levy of penalty. In the backdrop of the abovesaid provision of law, we find that the Tribunal was correct in modifying the order of the assessing authority in the matter of levy of penalty as of one falling under section 27(4)(i) and further holding that it does not fall under section 27(4)(ii), as held by the assessing authority. Admittedly, it is the first detection of wrongful availment. We further find that the proviso to section 27(4), i.e., to provide for an opportunity to the assessee for showing cause against such imposition of penalty, has also been complied with and the assessee has not chosen to rebut the same. In such view of the matter, we find that there is no error of law warranting interference with the order passed by the Tribunal and this court concurs with the finding of the Tribunal. There is no question of law, much less substantial question of law that arises for consideration in this appeal. This appeal, being devoid of merits, the same is dismissed. Consequently, connected miscellaneous petition is also dismissed.
