2016 (11) TMI 842 - HC - VAT and Sales Tax

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 pedestal of Section 28-B. It becomes pertinent to note that for violation of Section 28-B or its provisions a like penalty is provisioned for in clause (q) of Section 15-A(1). The vehicle in question commenced its journey in the State of Rajasthan and is stated to have been apprehended just before the check post at Saiyan - Now it needs to be borne in mind that section 28B lays down the requirement of obtaining what may be called a transit pass. This is a document which the person in charge of the 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 the part of the person to obtain the requisite form and declaration upon crossing the first check post or barrier which fell after his entry into the State. Here, the vehicle was apprehended before the first check post which fell upon entry into the State. It was not the case of the Department that the vehicle of the revisionist had crossed the Saiyan check post and was exiting the State of U.P. at which stage the goods were apprehended. The provisions of section 28B were therefore not infringed. 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.

Summary

Issues involved:
Levy of penalty under Section 28A of the U.P. Trade Tax Act, 1948; Applicability of Section 28A and 28B; Interpretation of provisions of Section 28A and 28B; Justification of penalty imposition under Section 15A(1)(o) and Section 15A(1)(q).

Analysis:
The judgment concerns the challenge to a penalty imposed on the revisionist under Section 15A(1)(o) of the U.P. Trade Tax Act, 1948, for an alleged contravention of Section 28A. The revisionist's vehicle, carrying goods from Rajasthan to Madhya Pradesh, was intercepted near a check post in U.P. The Tribunal upheld the penalty but reduced its quantum. The Court analyzed Sections 28A and 28B, highlighting that Section 28A applies to goods intended to be brought into the state, while Section 28B deals with goods transiting through the state. The Court noted that the Tribunal failed to consider the transit nature of the goods and upheld the penalty incorrectly.

The Court emphasized that Section 28B requires obtaining a transit pass at the first check post upon entry into the state and surrendering it at the last check post before exiting. Since the revisionist's vehicle was apprehended before reaching the first check post, the provisions of Section 28B were not violated. Therefore, the penalty under Section 15A(1)(q) was also unjustified. The Court found the orders of the authorities to be unsustainable and arbitrary.

Consequently, the Court allowed the revision, setting aside the orders of the authorized officer, first appellate authority, and the Tribunal. The penalty imposition under Section 15A(1)(o) and Section 15A(1)(q) was deemed unwarranted due to the misinterpretation of Sections 28A and 28B.