TMI Blog2013 (8) TMI 643X X X X Extracts X X X X X X X X Extracts X X X X ..... finding had been recorded by any authority in this regard. No case had been made out that Section 52 of the Act or Rule 58 or circular of the Commissioner had been violated - No case had been made out that the goods were not traceable to bonafide dealer and were not recorded in the books of accounts, document or register - The inference that the goods may likely to be unloaded inside the State of U.P. And may not be taken to other State, while the goods were in transit and vehicle was on declared route was merely based on presumption, suspicion and doubts, which was not sustainable in law. 28-B. Transit of goods by road through the State and issue of authorization for transit of goods - When a vehicle coming from any place outside the State and bound for any other place outside the State, and carrying goods referred to in sub-section (1) of Section 28-A, passes through the state, the driver or other person-in-charge of such vehicle shall obtain in the prescribed manner an authorization for transit of goods from the officer-in-charge of the first check-post or barrier after his entry into the State and deliver it to the officer-in-charge of the last check-post or barrier befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30600215600 When the goods were in transit, on 19.06.2013, the vehicle was intercepted by Commercial Tax, Mobile Squad, Unit-III, Aligarh. The driver of the vehicle produced Transit Declaration Form along with GR, invoice and other related documents. The Commercial Tax Officer detained the goods and issued the show cause notice on 19.06.2013 on the ground 1) that weighing parchi dated 21.05.2013 was found, which has been issued from Delhi Road, Hapur in respect of which a Transit Declaration Form no.D20130500184425 dated 15.05.2013. In this way on 21.05.2013 the vehicle should be between U.P. Border-Orissa but was found at Hapur. This shows that the goods have not been taken outside the State of U.P.; 2) That driver, in his statement, has stated that he had gone Orissa fifteen days earlier and returned back to Delhi on 15.06.2013. On enquiry, it was found that on 09.06.2013 a Transit Declaration Form no.D-20130600104592 was downloaded and the expected date of exit was 13.06.213 and the destination was Bargarh, Orrisa while the driver has admitted that he was at Delhi on 15.06.2013, which is not possible; 3) The declaration form under the Orissa VAT Act, which is necessa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within nine days establishes that the goods of the earlier consignment could not cross the State of U.P. It has been observed that the department has examined the transaction minutely and prima facie established that the documents furnished are not beyond doubt and is not mere presumption but established. It has also been observed that it came to notice that the goods in respect of which transit declaration form was obtained, the dealer was not registered in respect of the said goods under the respective VAT Act. Being aggrieved by the order of the Tribunal, the present revision is being filed. Heard Sri Aloke Kumar, learned counsel for the revisionist and Sri U.K.Pandey, learned Standing Counsel. Learned counsel for the applicant submitted that when the goods was in transit from Delhi to Orissa, it was intercepted at Aligarh almost near the entry point by the Assistant Commissioner, (Mobile Squad), Aligarh on 19.06.2013. Necessary documents relating to the goods, namely, invoice, GR, transit declaration form no.D20130600215600 have been produced before Assistant Commissioner, (Mobile Squad), Aligarh. No defect has been pointed out in such documents. Both purchaser and seller ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all be presumed that the goods carried thereby are meant for sale within the State by the owner or person-in-charge of the vehicle." Circular dated 12.12.2012 issued by Commissioner, Commercial Tax, U.P., Lucknow is reproduced below:- Section 52 of the Act is enabling provision gives right to any person to transport the goods from outside the State of U.P. to another State. It provides that the driver or other person in charge of such vehicle, shall carry such documents as may be prescribed failing which it shall be presumed that the goods carried thereby are meant for sale within the State by the owner or person in charge of the vehicle. Rule 58 of the Rules provides that the driver or person-in-charge of a vehicle carrying goods referred to in sub-section (1) of section 50, coming from a place outside the State of destined for a place outside the State, passes through the State, the driver or person-in-charge of a vehicle shall carry such documents and follow such procedures as may be determined by general or special order issued by the Commissioner from time to time failing which it shall be presumed that the goods carried thereby are meant for sale within the State b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny reason or basis merely on presumption, surmises and conjectures, appears to be with ulterior motive. In case, if there is any discrepancy in respect of the earlier transaction, it is always open to the authority concerned to take necessary action in respect of such transaction. However, prima facie it appears that even in respect of earlier transaction also there is no material that the goods have been unloaded inside the State of U.P and did not cross the State of U.P. The inference is merely based on presumption, surmises and conjectures. In reply to the show cause notice, the applicant has categorically stated that no such statement has been given by the driver. In the seizure order nothing has been stated about such plea. Therefore, the reliance placed on the statement of the driver, is wholly unjustified. Further the presumption that the driver can not go and come from Delhi to Orissa within nine days, is merely based on presumption and inasmuch as has no relevance to the present transaction. No reason has been given by the Tribunal for saying that the applicant was not registered in respect of the goods. No such ground has been taken by the authorities below and there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of New Indore Delhi Road Lines Vs. Commissioner, Commercial tax, reported in 2012 NTN (Vol.49), 19 while dealing with Section 52 and seizure of the goods this Court has held as follows: "It may be relevant to note that seizure of the goods in transit through U.P. Can be made only on the grounds mentioned under section 48 of the Act and the presumption that the goods are meant for sale in U.P. would only be available when they are not accompanied by the requisite documents, i.e. bills and bilties and the transit declaration form. It is not the case of the department that the goods were not accompanied by the relevant bills, bilties and transit declaration form. It is not even the case that the good have entered from the wrong place or were likely to be taken out from a different place or was not following the disclosed route as contained in the transit declaration form. There is no whisper that toe goods have over stayed in U.P., which may be a reason for the authorities to believe that they were meant for sale in U.P." In the case of Commissioner of Trade Tax, U.P. Lucknow Vs. S/s Sagir Khan and Zahir Khan, Rampur, reported in 2005 NTN (28) 129 the learned Single Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Att, Jalaun Vs. Commissioner of Trade Tax, reported in 2007 NTN (Vol.35), 39, M/s Rathi Industries Ltd. Vs. Commissioner of Commercial Tax, reported in 2009 (Vol.39), 279, M/s Jain Irrigation System Limited Vs. The Commissioner, Commercial Tax, U.P., Lucknow, reported in 2009 (Vol.39), 279, M/s New Mahavir Transport Company of Bharat Vs. The Commissioner, Commercial Tax, U.P., Lucknow, reported in 2009 NTN (Vol.41) 224, Balaji Timber Paint Vs. Commissioner, Commercial Tax, U.P., Lucnkow, reported in 2010 NTN (Vol.43), 53, Rbbrl Contractors And Another Vs. Commissioner, Commercial Tax, U.P., Lucknow, reported in 2011 NTN (Vol.46) 26. In the present case, no case has been made out that Section 52 of the Act or Rule 58 or circular of the Commissioner has been violated. No case has been made out that the goods were not traceable to bonafide dealer and are not recorded in the books of accounts, document or register. The inference that the goods may likely to be unloaded inside the State of U.P. And may not be taken to other State, while the goods were in transit and vehicle was on declared route is merely based on presumption, suspicion and doubts, which is not sustainable in law. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rried 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 the goods have actually moved out of the State shall be on the owner or person-in-charge of the vehicle." Apex Court in the case of M/s Sodhi Transport Company and another Vs. State of U.P. and another, reported in 1986 UPTC, 721, has upheld the validity of the said provision and has held that the Section 28-B of the Act is enabling provision to check the evasion of the tax. Under the said provision there was provision for obtaining the transit form from the entry check post and for the surrender of the same at the exit check post and in case of non-surrender it was open to the revenue authorities to raise the presumption. The revenue authority had complete record of the issue of transit form and had mechanism to get the information and to verify from the exit check post about their surrender. The mechanism was very much workable and successful in putting the check on the evasion of tax. Now under Section 52 of the Act read with Rule 48 of the Rules and circular there is a provision for obtaining the Transit Declaration Form by ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
