TMI Blog2003 (9) TMI 746X X X X Extracts X X X X X X X X Extracts X X X X ..... A perusal of form XXXIV, which is at page No. 23 of the revision petition, shows that in form XXXIV details of 21 GR's, number of packages, description of goods and value are mentioned. It appears that on the basis of confidential information, the Assistant Commissioner (Mobile Squad) made an inspection of the godown of M/s. Sodhi Cargo Movers, Jeevani Mandi, Agra. At the time of inspection, vehicle No. UP-80/K-9674 loaded with the goods was found standing and apart from that, two other vehicles were also standing in respect of which there is no dispute in present revision. The officer of mobile squad made the physical verification of the goods loaded in vehicle No. UP-80/K-9674. It is alleged that different goods were found other than declared in bill and builty, and the registration number of Delhi seller was not available, and the vehicle was not on the regular route, and hence show cause notice was issued. The applicant has given the reply of the show cause notice, which was not accepted and a seizure order was passed on December 25, 2002 by which the entire goods against 21 GR's were seized and after estimating the value of the goods at Rs. 16,62,548, a sum of Rs. 6,65 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereby have been sold within the State by the owner or person-in-charge of the vehicle: Provided that where the goods carried by such vehicle are, after their entry into the State, transported outside the State by any other vehicle or conveyance, the onus of proving that goods have actually moved out of the State shall be on the owner or person-in-charge of the vehicle. Explanation. In a case where a vehicle owned by a person is hired for transportation of goods by some other person, the hirer of the vehicle shall for the purpose of this section, be deemed to be the owner of the vehicle. Rule 87. The transit of goods by road through the State. (1) The driver or person-in-charge of a vehicle coming from any place outside the State and bound for any other place outside the State shall present the trip sheet in triplicate to the officer-in-charge of the check-post or barrier, if any, established near the point of entry into the State hereinafter referred to as entry check-post. (2) The officer-in-charge of the entry check-post shall after examining the document and after making such enquiries as he deems necessary specify on all the copies of the trip sheet the check-po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the validity of the provision. The apex Court held as follows: Now the impugned provisions are just machinery provisions. They do not levy any charge by themselves. They are enacted to ensure that there is no evasion of tax. As already observed, the Act is traceable to entry 54 in List II of the Seventh Schedule to the Constitution which reads thus: '54. Taxes on the sale or purchase of goods other than newspapers, subject to the provisions of entry 92A of List I'. It is well-settled that when the Legislature has the power to make a law with respect to any subject it has all the ancillary and incidental powers to make the law effective. ..................... The provisions of section 28-B of the Act and rule 87 of the Rules which are impugned in these cases as mentioned above are just machinery provisions. They impose no charge on the subject. They are enacted to ensure that a person who has brought the goods inside the State and who has made a declaration that the goods are brought into the State for the purpose of carrying them outside the State should actually take them outside the State. If he hands over the transit pass while taking the goods outside the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was found standing loaded with the goods. At this stage, it is pertinent to state that it is not the case of Revenue that any goods of the vehicle was found unloaded or unloading of the goods was going on. It is also not the case of the Revenue that the period for surrendering the said form XXXIV was expired. It was to expire at 12.00 P.M. on November 24, 2002. According to the opposite party distance was hardly 100-125 kms., which could be covered, within three hours. It is not the case of Revenue that vehicle could not cross exit check-post by 12.00 P.M. on November 24, 2002. I am of the view that prior to the expiry of the period for surrendering the transit pass, it is wholly irrelevant at which place where the vehicle was standing. The presumption of sale of goods inside the State of U.P., for which form XXXIV was issued can only be drawn, if it is found that form XXXIV was not surrendered within the period mentioned in form XXXIV and not prior to that. 8.. On the facts of the present case as stated above, situation to raise presumption of sales of goods inside of the State of U.P. had not arisen. The time for surrender form XXXIV had not expired and inasmuch as, the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 'dealer' as it stood from the very commencement of the Act subject to the other conditions prescribed in this behalf being fulfilled. A person who sells goods inside the State of Uttar Pradesh and fulfills the other conditions prescribed in that behalf is a dealer even as per amendments made in 1959, 1961, 1964, 1973 and 1978 to the said definition. There is, therefore, no substance in the contention that a transporter was being made liable for the first time after 1979 with retrospective effect to pay sales tax on a transaction which is not a sale. Tax becomes payable by him only after a finding is recorded that he has sold the goods inside the State though with the help of the presumption which is a rebuttable one. 10.. Therefore, in view of above position, while issuing form XXXIV the check-post officer must be more concerned about the genuineness of the transport-company and about the ownership of the vehicle, and the genuineness of the consignor and consignee are not much relevant because on the non-surrender of form XXXIV, presumption is being drawn for the sale of goods against the transporter, who is being treated as a dealer and subject to payment of pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rification should be made with reference to the packages, which is mentioned in form XXXIV and not with reference to number of pieces contained inside the packages and if the authority wants to verify the goods with reference to the number of pieces, such verification should also be made at the entry check-post while issuing form XXXIV and if form XXXIV was issued with reference to the packages and not with reference to the pieces, the verification should only be made with reference to the packages and not with reference to the pieces. 12.. In my view, since on verification same number of packages and same description of goods were found on physical verification as mentioned in GR's and in form XXXIV, it cannot be said that the goods were not relating to form XXXIV No. 4135/5309 dated November 23, 2002. At the exit check-post, necessary verification should be made only with reference to the details of the goods mentioned in form XXXIV. The details, which are not mentioned in form XXXIV should not be considered at the exit check-post. If in form XXXIV, number of pieces are not mentioned and only number of packages are mentioned, the verification of number of packages should b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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