TMI Blog2007 (2) TMI 681X X X X Extracts X X X X X X X X Extracts X X X X ..... vehicle was checked by Trade Tax Officer, Mobile Squad at Kanpur while it was entering inside the Transport Nagar. It appears that in the statement, driver stated that the goods had to be delivered at the godown of Fazal Mahmood situated at Transport Nagar, Kanpur. On the inspection of the cabin of the driver, one lorry challan and 13 loose parchas were found, which related to the 140 pcs. goods loaded in the vehicle, which reveals that the goods were to be delivered at Kanpur. On the basis of the statement of the driver and lorry challan and 13 loose parchas, show cause notice was issued under section 28-A of the Act on the ground that the goods were being imported on the garb of transit pass while it were to be delivered at Kanpur. In rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... archas were found from the cabin of the driver, which reveals that the goods had to be delivered at Kanpur. The statement of the driver also establishes that the goods had to be delivered at Kanpur. On enquiry, Delhi party and the consignee of Kolkata were found forged and non-existence. On the earlier occasion also, it was found that the good against the transit pass was unloaded at Kanpur and after unloading, different goods were tried to be transported; in some of the goods Chotu Tiwari, Kanpur was found written. On the basis of the above material it has been held that the goods were imported inside the State of U.P. for the delivery of the goods at Kanpur on the garb of the transit pass. Being aggrieved by the penalty order, opposite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ground that the goods loaded in the vehicle were intended for import inside the State of U.P. and for the delivery of the goods at Kanpur, which was established by the statement of the driver and transport voucher and parchas found from the cabin of the truck. He submitted that the opposite party intended to import the goods inside the State of U.P. and to sell the goods at Kanpur on the garb of the transit pass and when he was caught at Kanpur he had no option except to take away the goods outside the State of U.P. and to surrender the transit pass at the exit check post. He submitted that if the goods would not have been checked at Kanpur, same would have been delivered and sold at Kanpur and, thereafter, either opposite party wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h transit pass was obtained before the expiry of the period specified in the transit pass for surrender and it was not open to the check post officer to detain the vehicle and goods during the said period. He submitted that since the transit pass had been surrendered at the exit check post the question of raising any presumption of it being sold inside the State of U.P. did not arise. Having heard learned counsel for the parties, I have perused the order of the Tribunal and the authorities below. Section 28-A of the Act is a machinery section introduced to check the evasion of the tax as incidental power to levy the tax. Section 28-B of the Act came up for consideration before the Apex Court in the case of M/S Sodhi Transport Co. an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pcs of goods, inference could be drawn that the goods were likely to be delivered at Kanpur. It may be presumed that the driver had intent to deliver the goods at Kanpur and had imported the goods from Delhi on the garb of transit pass but once transit pass is issued and the period of surrender is not expired and the goods is not found delivered or disposed of finally either by way of sale or otherwise, no action can be taken merely on the presumption. In the present case vehicle was checked at Kanpur when it was loaded with the goods and the goods were not found unloaded or delivered to any party. The period for the surrender of the transit pass was not expired, therefore, inference that the goods would be d+elivered at Kanpur was mere pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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