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TMI Blog2013 (8) TMI 643X X X X Extracts X X X X X X X X Extracts X X X X ..... to as the "Act") read with Rule 58 of The U.P. Value Added Tax Rules, 2008 (hereinafter referred to as the "Rules") the driver of the vehicle, who was incharge of the goods, on furnishing of complete details of the goods obtained Transit Declaration Form no.D20130600215600 by downloading the particulars of the goods, namely, the name of transporter, vehicle number., chassis number, engine number, route, date of entry inside the State of U.P. and the expected date for leaving the State of U.P., value of goods, nature of goods, weight of goods, name of purchaser with registration number, name of seller with registration number, invoice number etc. The Transit Declaration Form obtained by downloading the details from the website is reproduced below: "Department Of Commercial Taxes, Government of Uttrar Pradesh Transit Declaration Form Transit number D20130600215600 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 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urity from 40% to 20% of the value of the goods. Tribunal has confirmed the seizure of the goods on the ground that the past history of the transporter reveals that the Transit Declaration Form had been obtained but the goods in respect of such Transit Declaration Form had not crossed the State of U.P. It is referred that the earlier Transit Declaration Form was obtained on 09.06.2013 in which the expected date of exit from State of U.P. was shown as 13.06.2013 while the driver in the statement has stated that he had reached Delhi on 15.06.2013, which was impossible, which leads to prima facie inference that within two days, the driver could not travel from Orissa to Delhi. The driver in his statement has stated that normally going and coming from Orissa to Delhi, 13-14 days takes place and thus, second Transit Declaration Form obtained 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the State and carrying goods referred to in sub-section (1) of section 50, passes through the State, 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 change of the vehicle. Rule 58. The transit of goods by road through the State.-- 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 and destined for a place outside the State, passes through the State, the driver or person-incharge 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is wholly irrelevant. In the present case, admittedly, the driver of the vehicle possessed the documents relating to the goods and the Transit Declaration Form and the same were produced before the Commercial Tax Officer at the time of checking. Neither such Transit Declaration Form was found non-genuine or improper nor any details relating to the goods furnished in the Transit Declaration Form were found incorrect. No such finding has been recorded by any authority in this regard. There is absolutely no material on record to presume that the goods may be unloaded inside the State of U.P. and may not cross the State of U.P. The reasons given by the authorities for the seizure of the goods is hopeless, baseless and beyond the reasonable thoughts. The authority concerned has acted illegally and arbitrary manner, without any 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obtaining transit declaration form and the doubt expressed about the possibility of the said vehicle being against used within a short span for transporting goods from Delhi to Patna is not the relevant criteria for inferring that the present goods are likely to be sold in U.P. In the case of Sahara Quick Transport Service Vs. State of U.P. And others, in Writ Petition (Tax) No.637 of 2013, the Division Bench of this Court has held as follows: "Prima facie we find that the Asstt. Commissioner, Mobile Squad, Commercial Tax has not given any findings with regard to validity of the transaction in question. He has relied upon some previous transportation of the goods by the same carrier for a different owner of the goods, which was not relevant for the purposes of exercising powers for seizure of the goods." In the 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 good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld that the goods cannot be seized on minor technical defect and should be allowed to be released without security. It is settled principle of law that seizure can not be made merely on presumption. There must be a material to show that the Section 52 Rule 58 or the procedure prescribed in the circular issued by the Commissioner has been violated. The Apex Court in the case of State of Kerala Vs. M.M.Mathew and another, reported in 42 STC, 348 has held that the presumption may be very strong but it can not take the place of evidence. It has been held that strong suspicion, strange coincidences, and grave doubts cannot take the place of legal proof. This is also the case of seizure of account books. Reliance is also placed on the decision of this Court in the case of S/S Ram Gopal Agarwal Galla Vyapari 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., Luc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8-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 before his exit from the State, failing which it shall be presumed that the goods carried thereby have been sold within the State by the owner or person-in-charge of the vehicle; Provided that 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 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 uph ..... X X X X Extracts X X X X X X X X Extracts X X X X
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