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TMI Blog2017 (12) TMI 341X X X X Extracts X X X X X X X X Extracts X X X X ..... rged IGST @ 18 per cent. By another Tax Invoice No.51, the petitioner claims to have sold 190 cartons of refined palm oil valued at Rs. 2,37,500 to the same purchaser M/s S.G. Enterprises at Assam, in which IGST @ 5 per cent is disclosed to have been charged. The aforesaid goods appear to have been consigned for transportation on truck bearing registration no. RJ07GB4874. The petitioner claims that these goods loaded on the aforesaid truck were passing through the State of U.P. being a transit state; that they entered U.P. on 1st of November 2017 and had reached 'Gorakhpur' and that the goods and truck were intercepted by the respondent no.4 at a place barely 15 kms. from the border with the State of Bihar. Upon the goods being detained, and the documents being verified, it was noticed that the goods were being transported without Transit Declaration Form(hereinafter referred to as the 'TDF') required to be accompanied with such goods in accordance with the notification dated 21.07.2017 under Rule 138 of the U.P. GST, Rule 2017(hereinafter referred to as the 'Rules'). It also appears that the detaining authority was not satisfied as to the identity of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition in view of alternative remedy being available to the petitioner against the penalty order. Responding to the above, Shri Shubham Agrawal learned counsel for the petitioner submits that the seizure and penalty orders are wholly without jurisdiction and therefore, the bar of alternative remedy may not apply. Also, he submits that no appellate authority has yet been constituted under the Act. Therefore, the remedy of appeal is not available to the petitioner. In this regard, Sri C.B. Tripathi states that a new Rule 109A has been notified recently on 24.11.2017. Considering the fact that the appellate authority had not been notified when goods were seized on 03.11.2017 or which penalty was imposed on 08.11.2017 and further, considering the fact that upon this writ petition being entertained, instructions had been sought and a short counter affidavit filed by the State, this writ petition is being disposed of in view of peculiar facts of this case, at this stage, with the consent of parties. In view of the above, the bar of the alternative remedy of the appeal is, therefore, not being enforced in the facts of the present case. On merits, he submits that for a seizure to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to support the contention of the assessee that the goods were merely passing through the State of U.P. Then, as to the difference in the identity of the goods namely Refined Palm Oil as alleged by the revenue, learned counsel for the petitioner submits that in the first place there is no difference as alleged inasmuch as on the packing a different description has been mentioned but the real identity of the goods is as described in the tax invoice i.e. Refined Palm Oil. Then, it is submitted that difference in the quantity or quality or description of the goods that are admittedly passing through the State of U.P. is of no consequence to the State revenue authorities inasmuch as such a difference has no revenue impact. Once it is admitted or established on record that the goods were only passing through State of U.P., the role of the U.P. authorities was minimal and confined to ensure that the goods that had entered in the State of U.P. passed through it without being sold or consumed or unloaded in the State of U.P. In such a case by very nature of the transaction no tax could be imposed by the State of U.P. for any goods passing through it though there may be some error, mista ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld mention the correct name of the goods for the proper verification but this can not be a ground to raise any doubt that goods may not cross State of U.P. All the documents namely, challan, builty, and Form-32, which is a declaration form for import under the Uttaranchal Trade Tax Act shows that movement of goods started from Rajasthan and was going to Uttaranchal and was not intended for import inside the State of U.P. The provision of section 28-A of the Act is not applicable. The inference of an intent to evade tax is based on suspicion and merely on surmises and conjectures and on irrelevant consideration. Therefore, the check post officer has erred in refusing to issue transit pass and seizing the goods and the Tribunal has erred in confirming the seizure of the goods." Reliance has also been placed on another judgment of a learned Single Judge passed in S.G. Express Vs. Commissioner of Trade Tax, U.P. reported in [2011] 37 VST 35(All) wherein following the judgment of M/s Murliwala Agrotech Limited (supra), the learned Single Judge held as follows:- "In M/s Murliwala Agrotech Ltd. Vs. Commissioner of Trade Tax, U.P. Lucknow 2005 NTN (28) 198 it has been held by this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arguments so made by the learned counsel for the parties, we find that at the stage of seizure the detaining authority had not applied his mind, nor formed any opinion as to intention to evade tax. The only allegation made in the seizure order is to the effect that the TDF is absent and that the goods have been mis-described. There is no allegation whatsoever as to the intention of the petitioner to evade tax. Even in the penalty notice issued to the petitioner on 03.11.2017, there is no allegation made of their being any intention on part of the petitioner to evade tax. Thus, the petitioner was never put to notice/show-cause why penalty may not be imposed on account of his intention to evade tax. The only allegation up to the stage of issuance of the penalty show-cause notice, therefore, appears to be that the petitioner had contravened the provisions of the Act and therefore exposed itself to the penalty. However, in the penalty order, almost in the passing the respondent no.4 has recorded that the petitioner had intention to evade tax by unloading the goods inside the State of U.P. However, as a fact petitioner has not been found to have unloaded the goods. Also, neither such ..... X X X X Extracts X X X X X X X X Extracts X X X X
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