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TMI Blog2003 (5) TMI 493X X X X Extracts X X X X X X X X Extracts X X X X ..... Limited. A perusal of the purchase order which has been annexed with the revision-petition, shows that the revisionist had placed orders for the purchase of 200 units of Pepsi concentrate, nine units of 7-UP concentrates, 81 units of Mirinda concentrates and 12 units of TEEM concentrate from Pepsi Foods Limited. 4.. The Patiala based company, i.e., Pepsi Foods Limited despatched the above-mentioned soft drinks concentrates by means of three different consignments, out of which two bearing invoice No. 673, dated January 29, 1998, and invoice No: 689, dated January 13, 1998, were passed by the trade tax authorities but the third consignment of 120 units of Pepsi bearing invoice No: 687, dated January 30, 1998, was detained by the check-post officer, Sarsawan, on February 2, 1998. 5.. A show cause notice was issued on February 2, 1998, i.e., the date when the consignment was detained and the reasons cited in the show cause notice was that the driver of the truck had not mentioned the goods, which he was carrying in the truck, in the trip sheet. The show cause notice further stated that the form XXXI which the driver had produced, was obsolete and therefore, the revisionist was asked ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 28-A of the Act. The Tribunal has held that the goods were not accompanied with proper cash memos, bills and challans and there was no mention of the goods in the trip sheet and this fact has also not been satisfactorily explained by the revisionist. The Tribunal has further held that the revisionist has also failed to properly explain the fact why old series of form XXXI were being used when new series of form XXXI had already been issued to the revisionist. The Tribunal, therefore, due to these reasons, has upheld the order of the Deputy Commissioner (Appeals) and dismissed the second appeal of the revisionist. 9.. Sri Bharatji Agrawal, the learned Senior Advocate appearing for the revisionist has submitted that the Tribunal had erred in dismissing the appeal of the revisionist and has submitted that the order of the Trade Tax Tribunal and the Deputy Commissioner (Appeals) suffers from the following infirmities and is liable to be set aside for the following reasons: (a) All the documents, namely G.R., form XXXI, etc., have been produced by the driver of the truck before the issue of notice for detention and seizure before the Sales Tax Officer, check-post, hence in view of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aining authority to indicate that the goods are being imported in an attempt to evade assessment or payment of tax due or likely to be due under the Act." 11.. The learned counsel has submitted that in view of the above decision, the Tribunal and the Deputy Commissioner (Appeals) erred in holding that the revisionist was guilty of violating section 28-A, as there was no material before the authorities which indicated that there was an attempt to evade tax and the relevant documents were produced before the seizure order was passed and therefore, there was no justification for imposing the penalty. 12.. The learned counsel, as regards the other aspects of the matter that the form XXXI produced by the revisionist at the time of inspection was obsolete, has submitted that the validity of form XXXI was extended by the Commissioner of Trade Tax by Notification No. 377, dated November 19, 1997, which stated that the form XXXI would remain valid till March 31, 1998, and they would be acceptable at all check-posts in the State of Uttar Pradesh. He has further submitted that the circular issued by the Commissioner is binding on the trade tax authorities. The learned counsel has further re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents of the learned counsel for the revisionist, has submitted and relied on the averments made in the short counter-affidavit filed by the State and has urged that the orders passed by the Deputy Commissioner (Appeals) and Trade Tax Tribunal do not suffer from any infirmity and after diligently examining the relevant provisions of the Act as well as the records, have imposed the penalty. The learned Standing Counsel has urged that the driver of the truck has failed to produce the documents at the time of checking and was unable to produce papers relating to import of 80 drums of Pepsi which had been hidden under the consignment of cycle tyres and therefore, the revisionist was guilty of attempting to mislead the check-post authorities with a view to evade payment of tax and therefore has violated section 28-A of the Act and thus the penalty imposed under section 15-A has been rightly imposed and the revisionist is liable to pay the same. 17.. I have considered the various submissions advanced by the learned counsel for the parties. It is necessary to peruse section 28-A of the Act and rule 84(4)(a) and rule 83(5)(a) which are being reproduced as under: "Section 28-A. Import of g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laration or certificate, as the case my be, in duplicate; (ii) cash memo, bill or challan; (iii) authorisation for transfer of goods/goods challan hereinafter referred to as trip sheet in triplicate. (b) The owner, driver or any other person in-charge of the vehicle or vessel shall in respect of all other goods carried in such vehicle or vessel carry with him a trip sheet in triplicate. (5)(a) The owner, driver or any other person in-charge of the vehicle or vessel shall produce the documents mentioned in subrule (4) before the officer in-charge of the check-post or barrier before any other officer not below the rank of an assessing authority on demand. (b) At the first check-post or barrier after his entry into the State, the owner, driver or any other person in-charge of the vehicle or vessel, as the case may be, shall give the original and duplicate copies each of the declaration or certificate and original, duplicate and triplicate copies of the trip sheet to the officer in-charge of the said check-post or barrier who will after satisfying himself about their completeness and correctness, sign and stamp them with his official seal and return the duplicate copy of the decla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... post officer. He further submitted that the various judgments relied upon are not applicable in the present case but the case is covered by a judgment reported in [1988] 69 STC 356 (All.); 1987 UPTC 1093 [Behari Lal Ram Kishun Lal v. Commissioner of Sales Tax]. 20.. Having heard the submission made by the parties and going through the various judgments relied on by the parties, as mentioned above, I am of the view that the non-production of form XXXI at the time of checking would not render the goods which are being brought into the State as being unauthorised as the driver before passing the seizure order had submitted the form XXXI. The premise that the form XXXI submitted was obsolete and therefore, the revisionist is liable to be penalised for this breach is unfounded as the Trade Tax Commissioner had, by his own circular, extended the validity of form XXXI and this circular was binding on the authorities and the action of the official at the check-post in ignoring this circular, was clearly not warranted and the authorities at the check-post should not have passed the seizure order dated February 8, 1998, in violation of the circular dated February 4, 1998, which resulted in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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