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TMI Blog2007 (12) TMI 439X X X X Extracts X X X X X X X X Extracts X X X X ..... t the police station and the goods were given to the custody of the station house officer on May 31, 2000. Notice under section 13A of the Act for seizure of the goods demanding explanation from the dealer was issued by the Trade Tax Department on June 1, 2000. Statement of the driver was also recorded. It is not disputed that the driver deposed that he was carrying the goods from Orai to Kanpur; he further deposed that he did not have complete papers and lastly that the relevant papers were with the owner of the goods who was following in a different vehicle. On the same day, i.e., June 1, 2000, the owner produced the relevant papers which contained two bills Nos. 115 and 116 showing that the goods which were being transported were tax-pai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Despite being asked to inform about the storage of the goods, the dealer or its agent present at the business site failed to disclose the whereabout of the said goods. The assessing officer accordingly treating the said goods to have been sold by the dealer during the period of assessment of its turnover, imposed the liability of tax on the same vide assessment order dated October 3, 2001. Against the penalty order as well as the assessment order the dealer preferred appeals which were dismissed by the Deputy Commissioner (Appeals) vide order dated September 28, 2001 and February 7, 2002 respectively. The dealer preferred two second appeals which were heard and decided together vide impugned order dated September 15, 2005 against the deal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arch 23, 2001, October 13, 2001 and November 23, 2001 and in view of the directions contained in these circulars once the criminal proceedings have been initiated by lodging an F.I.R., the department ought to have restrained itself from passing any order demanding security or imposing penalty. It is thus, submitted that the order of the penalty during the pendency of the criminal proceedings which according to him is still pending was in the teeth of the circulars of the Commissioner which are binding upon the assessing officers. The next submission of Sri Gupta is that the dealer had led sufficient evidence in support of his case to establish that the goods were being transported after having been purchased from within the State to anothe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imported as from the receipt of the bags of the supari it was clear that they belong to Kerala and Gwalior and the dealer had failed to produce any material that the said goods were imported by the dealer after payment of necessary tax. Thus, according to him, it is not a case where there was no evidence to show that goods were not being imported. Sri Sahai has further submitted that the circulars issued by the Commissioner could not prohibit the assessing officer from continuing with the assessment proceedings inasmuch as the statute provides limitation for making assessment and in case assessment is not made in time it may become time barred. In addition it was submitted that the circulars relied upon by the counsel for the dealer were s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r is rejected. The next submission on behalf of the revisionist is that the evidence led by the dealer had not been considered by the Tribunal, thereby vitiating its judgment. It has been submitted that the dealer had produced two Bills Nos. 115 and 116 by which the goods were being transported from Orai within the State of U.P. to Kanpur, again within the State of U.P. Further the revisionist had filed the goods transport receipt showing that the goods had been booked with Jai Maa Durge Transport Union (Mini Truck), Orai for being transported to Kanpur. All these evidences clearly established that the transportation of the goods was within the State of U.P. and it was not a case of import of goods from outside the State of U.P. It was sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tually been imported. Even if the dealer had failed to lead evidence to show that the goods had not been imported and had been purchased within the State of U.P. there could not be any presumption that the goods were being imported. In support of his contention Sri Gupta had relied upon the following decisions: 1.. Securipax India Pvt. Ltd., Ghaziabad v. Commissioner of Sale Tax reported in [2001] UPTC 126. 2.. Delta Engineering Co. (Pvt.) Ltd., Meerut v. Commissioner of Sales Tax reported in [1993] UPTC 89. 3.. Kanhoria Pipe and Fitting Company v. Commissioner of Sales Tax reported in [2001] 121 STC 415 (All); [2000] UPTC 81. On the other hand, Sri K.M. Sahai, learned Standing Counsel has submitted that in absence of any evidence to s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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