9911796707
TMI Blog1994 (8) TMI 279X X X X Extracts X X X X X X X X Extracts X X X X ..... s of cotton yarn consisting of 5, 15 and 10 bales respectively for transport to Kathmandu and to be handed over to M/s. Ytax Traders, M/s. Chipalu Traders and M/s. Yangla Galicha Udyag, Kathmandu, respectively. The said M/s. Jamuna Enterprises had handed over its bills Nos. 62, 61 and 60 which were dated January 3, 1992. The petitioner prepared goods receipts Nos. 30075, 30074 and 30073 in respect of those goods. On January 2, 1992, another client of the petitioner, namely, Goenka Traders of Lakshmi Bazar, Cloth Market, Delhi had also given a consignment of 103 bales of cotton yarn to the petitioner for transporting it to M/s. Chhangla Carpet Industries, Kathmandu, vide their bill No. 976, dated January 1, 1992. In respect of this consignme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opy of the seizure order has been annexed as annexure 3 to the writ petition. According to the petitioner since the goods were to be transported to Kathmandu urgently, the petitioner deposited the security and transported the goods to Nepal where they crossed the exit check-post of Sanoli Maharajganj on January 17, 1992. The goods handed over to the petitioner by M/s. Goenka Traders consisting of 103 bales of cotton yarn were separately transported to Kathmandu, vide G.R. No. 30014. According to the petitioner, the goods in question, i.e., 30 bales of cotton yarn were duly traceable to a bona fide dealer, namely, M/s. Jamuna Enterprises yet the Sales Tax Officer, Transport Nagar check-post, issued a notice for levy of penalty under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to the show cause notice the petitioner had submitted that the 30 bales of cotton yarn which were loaded in the aforesaid truck and which were detained actually pertain to other G.Rs. Nos. 30073, 30074 and 30075 and that due to mistake of the clerk G.R. No. 30014 was given to the driver in place of G.R. No. 30074. It is admitted that on January 15, 1992, the other consignment of 103 bales of cotton yarn booked by M/s. Goenka Traders passed out of the said check-post in truck No. MKM-1479 for which a transit pass in form 34 was duly issued. It is further stated that the disputed goods consigned from U.P. and the consignment was not covered by any document such as bill, invoice, challans as well as memo, etc., and that the actual selling de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 30, 1992, by which the Sales Tax Officer, Transport Nagar check-post, has levied the penalty of Rs. 89,200 would show that the officer was thoroughly confused and was oblivious of the default for which a penalty can be levied under section 13-A(4) of the Act. He has recorded no finding that the goods in question, i.e., 30 bales of cotton yarn were not recorded, in the accounts or registers of the petitioner-transporter or of M/s. Jamuna Enterprises to whom according to the petitioner the goods belonged. He has also not recorded any finding that M/s. Jamuna Enterprises of Delhi was not traceable or having been traced had denied the ownership of the goods or having handed over the same to the petitioner for transport. He has laid stress on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of section 13-A(1), 13-A(1-A) and 13-A(4) to find out the nature of default for which penalty can be levied under section 13-A(4). The learned Tribunal has, like the Sales Tax Officer, mentioned that the papers accompanying the consignment contained different particulars. As pointed out earlier the petitioner's explanation was that it happened because of a mistake. The Tribunal has not recorded any finding that there was no such mistake as alleged by the petitioner and that in fact no papers connected with 30 bales of cotton yarn existed or were produced before the authorities concerned. The Tribunal has also mentioned that the explanation that a wrong set of papers was handed over to the driver of the truck was not set up before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection (1-A) of section 13-A the requirement is that the goods should not be traced to any bona fide dealer or that it is doubtful if such goods are properly accounted for by any dealer in his accounts, registers or other documents. The use of the word "traced" is significant and implies a duty on the part of the authorities concerned to trace the dealer to whom the transporter contends the goods to belong. The petitioner having produced the concerned papers and having informed the department of the name and address of the consignor, who being at Delhi was not very far from the check-post, it was the duty of the check-post authorities to attempt to contact M/s. Jamuna Enterprises and it was only if the party could not be traced or having be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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