Hon'ble Surya Prakash Kesarwani,J.

1. Heard Sri Atul Gupta along with Sri Suyash Agarwal, learned counsel for the revisionist and Sri B.K. Pandey, learned Standing Counsel for the respondent.

2. This revision has been filed under Section 11 of U.P. Trade Tax Act 1948 (hereinafter referred to as "the Act") challenging the order dated 16.8.2005 in Second Appeal No.132 of 2005 (A.Y. 2000-2001) passed by the Member Trade Tax Tribunal, Ghaziabad -1st, Ghaziabad.

3. The revision was admitted on 22.9.2005.

4. With the consent of learned counsels for the parties the following question of law is formulated:

(a) Whether under the facts and circumstances of the case, the Tribunal has committed a manifest error of law and facts to uphold the evaded sales of 1524 grams 'Paclitaxel' @ Rs.29,000/- per gram amounting to Rs. 4,41,96,000/- + excise duty Rs.58,12,374/- = 5,00,08,374/- and to leavy tax thereon @ 8% amounting to Rs.40,00,699.92?

Facts:

5. Briefly stated facts of the present case are that assessment of the revisionist assessee for the A.Y. 2000-01 (U.P.) originally was completed by Assessment Order dated 30.12.2002. Subsequently, the department received certain information from the Central Excise Department regarding manufacture and certain transaction of the goods 'Paclitaxel' which is a raw material being used in manufacture of medicine for treatment of Cancer. On the basis of this information, proceedings under Section 21 of the Act were initiated. An ex-parte Assessment Order under Section 21 of the Act was passed on 27.9.2003. The assessee moved an application for recall of the ex-parte order under Section 30 of the Act. The ex-parte Assessment Order was recalled and the case was fixed for hearing. The assess again did not appear. Consequently, again an ex-parte order dated 8.4.2004 was passed. The assessee again moved an application under Section 30 of the Act and thereupon the ex-parte Assessment Order dated 8.4.2004 was recalled by order dated 20.5.2004.

6. Before the Assessing Authority, in proceedings under Section 21 of the Act, the Assessee admitted total quantity of 'Paclitaxel' manufactured during the Assessment Year 2000-01 in its Sahibabad (U.P.) Unit to be 1524 grams. The assessee took the stand that out of this quantity they have transferred 1040 grams to their unit at Baddi, District - Solan (Himanchal Pradesh) and 25 grams was given for research work to Dabur research foundation Ghaziabad. No information was disclosed with respect to the rest of the quantity of 'Paclitaxel' i.e. 459 grams. Considering the evidences on record the Assessing Authority reached to the conclusion that the entire quantity of 1524 grams 'Paclitaxel' was sold within the State and there was no stock transfer as alleged. On the basis of own bill of the assessee dated 6.12.1997 showing sale of 'Paclitaxel' @ Rs.28,000/- per gram and the report of the excise department for its value @ Rs. 29,000/- per gram, the sale value of the aforesaid quantity was determined @ Rs. 29,000/- per gram. Accordingly the evaded sales of 'Paclitaxel' was determined at Rs.5,00,08,374/- and tax was levied @ 8% amounting to Rs.40,00,669.92. Certain other evaded sales of other items were also found on which the tax was levied amounting to Rs.2,68,551/- which was admitted by the assessee and the tax was also deposited by treasury challan dated 24.11.2003. Aggrieved with the aforesaid Assessment Order dated 26.10.2004 under Section 21 of the Act passed by the Dy. Commissioner, (Assessment) -1st, Trade Tax, Ghaziabad, the assessee preferred First Appeal No.763 of 2004, which was dismissed by the Joint Commissioner (Appeal) 1st Trade Tax, Ghaziabad by Order dated 31.3.2005. Aggrieved with this order the assessee preferred second appeal No.132 of 2005 which has been dismissed by the Tribunal by the impugned order dated 16.8.2005. Aggrieved with order of