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2016 (11) TMI 842 - ALLAHABAD HIGH COURT

2016 (11) TMI 842 - ALLAHABAD HIGH COURT - TMI - Levy of penalty u/s 15A(1)(o) of the 1948 Act - alleged contravention of the provisions of Section 28A of the U.P. Trade Tax Act, 1948 - detention of goods - goods not accompanied with the documents required in terms of the provisions of Section 28A - Held that: - While it is true that the proceedings for levy of penalty were instituted with reference to clause (o) of Section 15-A (1) alone, the case of the revisionist may be tested even on the pe .....

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vehicle must obtain at the time of entry into the State and surrender upon exiting the State. The time at which this transit pass is to be obtained and surrendered is prescribed to be "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". The statutory presumption of a sale having occurred within the State or a violation of section 28-B would come about only upon the failure on th .....

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Consequently, the question of a levy of penalty in terms of section 15A (1)(q) would also not arise. The Court therefore finds that the orders of the authorized officer, first appellate authority as well as the Tribunal are clearly unsustainable and arbitrary. - Revision allowed. - Sales/Trade Tax Revision No. 1580 of 2005 - Dated:- 29-7-2016 - Hon'ble Yashwant Varma, J. For the Applicant : Kunwar Saksena For the Opposite Party : C.S.C. ORDER Heard Sri M.M. Rai, the learned counsel for t .....

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Ltd. at Indore in the State of Madhya Pradesh. This vehicle is stated to have been intercepted near the Saiyan crossing just prior to the check post established by the Trade Tax authorities in the district of Agra. Since the goods were not accompanied with the documents required in terms of the provisions of Section 28A, they were detained. A notice to show cause was issued on 5 February 2000 calling upon the person in charge of the vehicle to establish cause as to why penalty be not imposed. A .....

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000/- being 12% of the value of the goods. It is against the said order that the instant revision has come to be instituted. In order to appreciate the submissions advanced by Sri Rai, it would be first apposite to refer to the provisions of Section 28-A and 28-B of the 1948 Act, which read as follows: "28-A. Import of goods into the State against declaration. -(1) Any person (hereinafter in this section referred to as the importer) who intends to bring, import or otherwise receive, into th .....

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ehalf, in connection with business, shall obtain the prescribed form of declaration, on payment of the prescribed fee, from the Assessing Authority having jurisdiction over the area where his principal place of business is situated or, in case there is no such place, where he ordinarily resides: Provided that where the importer intends to bring, import or otherwise receive such goods otherwise than in connection with business, he may, at his option, in the like manner obtain the prescribed form .....

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) where such goods are brought by a road on which a check-post or barrier is established under Section 28, to the officer-in-charge of such check-post or barrier before crossing the check-post or barrier, and (ii) where such goods are brought by a road on which no such check-post or barrier is established, to the officer-in-charge of the nearest check-post or barrier established under the said section before transporting such goods further within the State; and the other copy of the declaration .....

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other copy of the declaration and other documents delivered to him or to his agent under Clause (a) for such period as may be prescribed and produce them before the Assessing Authority whenever demanded by it within such period. (3) Where such goods are consigned by rail, river, air or post, the importer shall not- (a) obtain or cause to be obtained delivery thereof unless he furnishes or causes to be furnished to such officer, as may be authorised in this behalf, by the State Government, a dec .....

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him the declaration in the prescribed form duly filled in and signed by the importer, and the importer shall submit the same for endorsement by the officer referred to in sub-section (3) by the next working day. (4-A) Where any person intends to bring, import or otherwise receive into the State from any place without the State any goods referred to in sub-section (1) otherwise than in connection with business and obtains the prescribed form of certificate, the provisions of sub-sections (2), (3) .....

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ficer-in-charge of the check-post or barrier or the officer authorised under sub-section (2) of Section 13, as the case may be, and allow him to search the vehicle and inspect the goods and all documents referred to in the preceding sub-section, and shall, if so required, give his name and address and the names and addresses of the owner of the vehicle and of the consignor and the consignee of the goods. (6) Where the officer making the search or inspection under this section finds any person tr .....

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tions (2), (6) and (8) of Section 13-A shall mutatis mutandis apply to such detention, as they apply to seizure under that section. (8) Nothing contained in this section shall be construed to impose any obligation on any railway administration or railway servant or the post office or any officer of the post office, or to empower any search, detention or seizure of any goods while on a railway as defined in the Indian Railways Act, 1890, or in a post office as defined in the Indian Post Office Ac .....

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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 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 .....

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ge of Section 28A, it is clear that the obligation which is placed in terms of its provision is upon a person who intends to bring import or otherwise receive goods into the State. Section 28-A obviously, therefore, cannot apply to goods, which are merely transiting the State of U.P. on their journey onwards to another State. The case of goods which enter the State of U.P. and transit the State onwards has in fact been taken care of and requisite provisions in respect of such eventuality provisi .....

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a case where goods have been imported or transported in contravention of the provisions of Section 28-A, clause (q) provides for a levy of penalty in case of an infraction of Section 28B. The Tribunal has in the opinion of this Court while undertaking a labored exercise to uphold the levy of penalty clearly failed to bear in mind the fundamental facets of Sections 28A and 28B. While various faults have been found with respect to the quality of the documentation which was found to be accompanyin .....

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f U.P. Since in view of the above the provisions of section 28A did not apply, consequently the levy of penalty in terms of clause (o) of Section 15-A (1) was clearly unsustainable and unjustified. While it is true that the proceedings for levy of penalty were instituted with reference to clause (o) of Section 15-A (1) alone, the case of the revisionist may be tested even on the pedestal of Section 28-B. It becomes pertinent to note that for violation of Section 28-B or its provisions a like pen .....

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