9911796707
TMI Blog2010 (7) TMI 926X X X X Extracts X X X X X X X X Extracts X X X X ..... Trade Tax Act (hereinafter referred to as, "the Act"). The dispute of penalty relates to assessment year 2005-06. The assessee was transporting 1,026 suit cases allegedly from Delhi to Guwahati vide trucks No. HR 55 B/3185 and DEL 1E/3625. He produced the relevant documents at the central check-post, T.P. Nagar, Ghaziabad, showing the name of the consignor as Ashish Attachi Centre, 12/6, Mangolpuri, Delhi, and insisted for issuance of the necessary transit form 34 in accordance with section 28B of the Act. The officer-in-charge of the check-post instead of issuing transit form detained the goods on the ground that the consignor as disclosed in the documents produced is fake and non-existent. The goods so seized were directed to be release ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission of learned standing counsel in reply, is that as the consignor on enquiry was found to be fake and non-existent the authorities rightly believed that the goods were being transported from within the State of U.P. to outside with the intention to avoid trade tax. Section 28B of the Act is not a charging section but it provides for a machinery to check evasion of trade tax and to ensure that the goods which are being carried from one place to another through the State of U.P. are not sold within the State of U.P. The aforesaid section reads as under: "28B. Transit of goods by road through the State and issue of authorisation for transit of goods.-When a vehicle coming from any place outside the State and bound for any other place ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect description in the documents submitted for the purpose of obtaining transit form or non-existent of the consignor would also attract the presumption laid down in the aforesaid provision or any penalty. At best, in the event of above irregularities, the officer-in-charge of the check-post can only detain the goods or refuse to issue transit form. In the case at hand admittedly, a transit form was subsequently issued to the assessee meaning thereby that the issuing authority was satisfied that the goods are coming from outside U.P. for being carried through U.P. to a destination again outside U.P. It was duly produced at the exit check-post within time and no discrepancy in its production was found. Therefore, the twin conditions laid d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure itself becomes doubtful and as such the imposition of penalty on the ground of seizure cannot also be justified. It may be noted that it is not the case of the Department that the goods as per the transit pass were unloaded within the State of U.P. or found to be different or not tallying with those mentioned in the form or that they were not properly accounted. Apart from the above, it is well recognised that for imposing penalty there must be a clear intention to evade payment of tax and mere seizure of the goods cannot be sufficient in itself for imposing of penalty. The Tribunal has not recorded any finding of intention to evade tax on the part of the assessee in resorting to the order of penalty and has not even taken into consid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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