ORDER : (PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA) 1. Heard learned advocate Ms. Noopur Parikh for learned advocate Mrs. Yogini Parikh for the appellant and learned Assistant Government Pleader Ms. Shrunjal Shah for the respondent on advance copy. 2. These Tax Appeals are filed by the appellant-M/s. Bharat Petroleum Corporation Ltd being aggrieved by the Judgement and Order passed by the Gujarat Value Added Tax Tribunal, Ahmedabad in Second Appeal Nos. 686/2011, 687/2011 and 688/2011. 3. The appellant has proposed the following substantial questions of law in Tax Appeal No. 526 of 2023 and 527 of 2023 except amount pertaining to Form C as under: “A. Whether under facts and circumstances of case, the Ld. Gujarat Value Added Tax Tribunal at Ahmedabad was justified by not providing sufficient time in production of statutory Form ‘C’ even though there were attempts made by the Appellant in production of above-mentioned Statutory Form? B.Whether the First Appellate Authority was justified in rejecting the Appeal merely on the ground of limitation in spite the Appellant had produced sufficient evidence on record at the time of the hearing of the First Appeal? C.Whether under the facts and circumstances of the case, the Ld. Gujarat Value Added Tax Tribunal was justified in confirming the Order passed by the First Appellate Authority for the payment of Tax in non-production of Form C of Rs. 1,31,00,950/-? 4. So far as Tax Appeal No. 681 of 2023 is concerned, the appellant has not proposed any substantial questions of law however, on perusal of the order passed by the Tribunal and considering the prayers made by the appellant, following substantial questions of law are framed: A. Whether in the facts and circumstances of the case, the Tribunal was justified in confirming the order of levy of higher tax along with interest for non-payment of From No. II or Rs. 2,53,07,615/- by Assessing Officer or not? B. Whether the Tribunal was justified in reduction of penalty from Rs. 42,63,636/- to Rs. 5,55,150/- as admitted by the representative of the appellant on the basis of the circular issued by the Commissioner? 5. Brief facts of the case are as under: 5.1 The appellant is a Public Sector Undertaking and is assessed under the provisions of the Gujarat Motor Spirit Cess Act,2001 [for short ‘the Act of 2001’] for the Years 1996-97 and 2000-01. 5. Brief facts of the case are as under: 5.1 The appellant is a Public Sector Undertaking and is assessed under the provisions of the Gujarat Motor Spirit Cess Act,2001 [for short ‘the Act of 2001’] for the Years 1996-97 and 2000-01. 5.2 The Assessing Officer assessed the full amount of tax payable by the appellant as the transaction of sale of motor spirit by the appellant was not supported by Form-II of under the Act of 2001 and Form-C as per Rule 12 of the Central Sales Tax (Registration and Turnover) Rules, 1957. 5.3 The Assessing Officer also imposed penalty under section 5(3) of the Act of 2001. Being aggrieved by the Assessment Order, the appellant preferred appeals before the First Appellate Authority along with applications to condone the delay. However, the First Appellate Authority refused to condone the delay and rejected the appeals on the ground of limitation. 5.4 Being aggrieved, the appellant preferred Second Appeal for the Year 1996- 97 under the Act of 2001 before the Tribunal on 16.01.2010 and Second Appeals for the Years 1996-97 and 2000-01 under the CST Act before the Tribunal being Second Appeal Nos. 919 to 921 of 2010 along with applications to condone the delay. 5.5 The Tribunal, after condoning delay by order dated 10.02.2011, remanded the matter before the First Appellate Authority to be decided on merits. However, it appears that no one appeared before the appellate authority even after issuance of notice. Therefore, the appellate authority again passed the order dated 04.06.2011 on merits dismissing the appeals confirming the assessment order. 5.6 Being aggrieved, the appellant again preferred three Second Appeals No. 686 to 688 of 2011 before the Tribunal. The Tribunal, by the impugned orders, dismissed the appeals recording the findings of fact that since more than 20- 25 years have been passed for submission of Form-II under the Act of 2001 and Form- C under the CST Act, the appellant has failed to produce the Form-C. The Tribunal reduced the penalty levied by the Assessing Officer from Rs. 42,63,636/- to Rs. 5,55,150/- as agreed by learned advocate Mr. B.S.Vakil appearing for the appellant. Being aggrieved, the appellant has preferred these appeals. 6. Learned advocate Ms. Noopur Parikh for the appellant submitted that the Assessing Officer has not issued Form-K which is mandatory prior to framing of assessment. 42,63,636/- to Rs. 5,55,150/- as agreed by learned advocate Mr. B.S.Vakil appearing for the appellant. Being aggrieved, the appellant has preferred these appeals. 6. Learned advocate Ms. Noopur Parikh for the appellant submitted that the Assessing Officer has not issued Form-K which is mandatory prior to framing of assessment. It was submitted that the notice under Form-K was issued after the assessment order was passed. It was submitted that in view of the above facts, the impugned orders passed by the Tribunal are required to be quashed and set aside and the matters may be remanded back to the Assessing Officer so as to enable the appellant to furnish Form-II under the Act of 2001 as well as Form-C under the CST Act so as to see that the appellant is not saddled with the higher rate of tax as levied by the Assessing Officer and confirmed by the Tribunal. 7. Having heard learned advocate for the appellant and on perusal of the facts emerging from the record it is not in dispute that the appellant, even after the remand made by the Tribunal in the first round, has failed to produce Form-II under the Act of 2001 as well as Form-C under the CST Act and therefore, the Tribunal has rightly recorded findings of fact that the appellant, though has been granted time, has not been able to produce the requisite forms for reduced rate of payment of tax for more than 20 years. Relevant findings arrived at by the Tribunal are as under: “(2)Today, present matter is taken up on the board for the regular hearing. Learned Advocate Mr. B.S.Vakil for the appellant and learned Government Representative Mr. A.K.Prajapati for the State have remained present for the hearing. (3) Learned Advocate Mr. B.S.Vakil has submitted that present second appeal is filed for the financial year 1996- 97 under the CST Act. He has submitted that main issue in this appeal is non- production of statutory form C of Rs. 5,50,17,577/- (Rs. 4,33,475/-+Rs. 5,45,84,102/-). He has submitted that some time may be granted for the production of pending statutory forms. (4)Learned Government Representative Mr. A.K.Prajapati has objected to the submission and submitted that this appeal is pertaining to financial year 1996-97 since more than 25 years has been passed, therefore, no more time may be granted for production of pending forms. 4,33,475/-+Rs. 5,45,84,102/-). He has submitted that some time may be granted for the production of pending statutory forms. (4)Learned Government Representative Mr. A.K.Prajapati has objected to the submission and submitted that this appeal is pertaining to financial year 1996-97 since more than 25 years has been passed, therefore, no more time may be granted for production of pending forms. (5) We have gone through the submissions of both the parties and we agree with the submission of learned Government Representative, hence we decide that no more time is granted for production of pending forms. (6) In light of aforementioned facts and reasons, following order is passed: ORDER A. Second Appeal No. 687 of 2011 is hereby disallowed. B. Order of assessing authority as well as first appellate authority is hereby confirmed. C. No order of costs.” Following observations are made by the Tribunal in Tax Appeal No. 681 of 2023: “(2) Today, present matter is taken up on the board for the regular hearing. Learned advocate Mr. B.S.Vakil for the appellant and learned Government Representative Mr. A.K.Prajapati for the State have remained present for the hearing. (3) Learned advocate Mr. B.S.Vakil has submitted that in this appeal the demand was raised on ground of non- production of statutory form II of Rs. 2,53,07,615/-. He has submitted that some time may be granted for the production of pending statutory forms. (4) Learned Government Representative Mr. A.K. Prajapati has objected to the submission and submitted that this appeal is pertaining to financial year 1996-97 since more than 25 years has been passed, therefore, no more time may be granted for production of pending forms. (5) We have gone through the submissions of both the parties and we agree with the submission of learned Government Representative, hence we decide that no more time is granted for production of pending forms. (6) Learned advocate Mr. B.S.Vakil has submitted that on this non-production of forms, the assessing officer has levied penalty at the rate of 75% which is of Rs. 41,63,636/-. He has submitted that this penalty should be reduced to Rs. 5,55,150/- based upon circular of Hon’ble Commissioner on this subject. (7) Learned Government Representative Mr. A.K.Prajapati has expressed no objection with reference to circular of Hon. Commissioner. 41,63,636/-. He has submitted that this penalty should be reduced to Rs. 5,55,150/- based upon circular of Hon’ble Commissioner on this subject. (7) Learned Government Representative Mr. A.K.Prajapati has expressed no objection with reference to circular of Hon. Commissioner. (8) We have gone through the submissions of both the parties and we decide that penalty levied at the rate of 75% by assessing officer is hereby reduced to Rs. 5,55,150/-. (9) In light of aforementioned facts and reasons, following order is passed. ORDER A. Second Appeal No. 686 of 2011 is hereby allowed. B. Higher Tax Levied along with interest for the non-production of Form No. II of Rs. 2,53,07,615/- by assessing officer is hereby confirmed. C. Penalty levied at the rate of 75% of Rs. 42,63,636/- is hereby reduced to Rs. 5,55,150/-. D. No order of cost.” 8. On perusal of the above findings of the Tribunal, it is apparent that it is not in dispute that the appellant has failed to produce the requisite Forms for more than 20 years and in view of such factual findings of fact, no interference is called for as the Assessing Officer has rightly passed the Assessment Order in absence of Form, by levy of higher rate of cess, tax and penalty. 9. We also take note of fact that the Tribunal has reduced the penalty from 75% under the Act of 2001 from Rs. 42,63,636/- to Rs. 5,55,150/- which was as per the admission of the learned advocate Mr. B.S.Vakil, who appeared for the appellant before the Tribunal as recorded by the Tribunal in para 6 of the order passed in Second Appeal No. 686 of 2011 as reproduced here-in-above. 10. In view of the above facts we are of the opinion that no question of law much less any substantial question of law arises from the impugned orders of the Tribunal. The appeals, being devoid of any merit, are accordingly dismissed. 11. In view of the dismissal of the appeals, Civil Applications also stands dismissed.