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TMI Blog2003 (9) TMI 746X X X X Extracts X X X X X X X X Extracts X X X X ..... put the responsibility on the driver or the person-in-charge or hirer of the vehicle to obtain form XXXIV and to surrender at the exit check-post. In case, if the form XXXIV is not surrendered, it is the transporter against whom the presumption is drawn as contemplated under section 28-B of the Act and the transporter would be treated as dealer . It is made clear that transporter may be owner of the vehicle, which includes hirer and person-in-charge and driver represents, owner of vehicle. Therefore, while issuing form XXXIV the check-post officer must be more concerned about the genuineness of the transport-company and about the ownership of the vehicle, and the genuineness of the consignor and consignee are not much relevant because on the non-surrender of form XXXIV, presumption is being drawn for the sale of goods against the transporter, who is being treated as a dealer and subject to payment of penalty and tax. In my view, since on verification same number of packages and same description of goods were found on physical verification as mentioned in GR s and in form XXXIV, it cannot be said that the goods were not relating to form XXXIV No. 4135/5309 dated November 23, 2002. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er referred to as "the Act") is directed against the order of the Trade Tax Tribunal, Agra, dated May 28, 2003. 2. Brief facts of the case borne out from the record are that the applicant is a transport-company and engaged in the business of transportation of goods. The applicant had booked the goods of various parties against 21 goods receipts (GR's) for transportation from New Delhi to Akola (State of Maharashtra). The said goods were being transported in a truck No. UP-80/K-9674. At the time of entry in the State of U.P. at Kotwan Check-Post, applicant applied for transit pass in form XXXIV in respect of the goods relating to 21 GR's for transportation to Akola through State of U.P. The officer of Kotwan check-post issued form XXXIV No. 4135/5309 dated November 23, 2002. The said form was required to be surrendered at the exit check-post, Sainya by November 24, 2002. A perusal of form XXXIV, which is at page No. 23 of the revision petition, shows that in form XXXIV details of 21 GR's, number of packages, description of goods and value are mentioned. It appears that on the basis of confidential information, the Assistant Commissioner (Mobile Squad) made an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... physical verification different goods were found as against mentioned in the bill and builty, shows that they were not relating to transit pass. 5. The relevant provisions are referred as follows: "Section 28-B. Transit of goods by road through the State and issue of authorisation for transit of goods.--When a vehicle coming from any place outside the State and bound for any other place outside the State, and carrying goods referred to in sub-section (1) of section 28-A, passes through the State, the driver or other personin-charge of such vehicle shall obtain in the prescribed manner an authorisation for transit of goods from the officer-in-charge of 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, failing which it shall be presumed that the goods carried thereby have been sold within the State by the owner or person-in-charge of the vehicle: Provided that where the goods carried by such vehicle are, after their entry into the State, transported outside the State by any other vehicle or conveyance, the onus of proving that goods have actually moved out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncillary power can also enact machinery provisions to check the evasion of tax. If any person wants to carry the goods from one place to another place through the State of U.P., in order to ensure that such goods have not been sold inside the State of U.P., the provisions of section 28-B has been introduced. The validity of section 28-B of the Act has been challenged before the honourable Supreme Court in the case of Sodhi Transport Co. v. State of U.P. reported in [1986] 62 STC 381; 1986 UPTC 721 on the ground that, (i) the provisions were outside the scope of entry 54 of List II of the Seventh Schedule; (ii) they infringed freedom of trade, commerce and intercourse guaranteed under article 301 of the Constitution of India; and (iii) imposed unreasonable restrictions on the freedom of trade guaranteed under article 19(1)(g) of the Constitution of India. Honourable Supreme Court has upheld the validity of the provision. The apex Court held as follows: "Now the impugned provisions are just machinery provisions. They do not levy any charge by themselves. They are enacted to ensure that there is no evasion of tax. As already observed, the Act is traceable to entry 54 in List II ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n liable to tax with the object of preventing evasion of the tax cannot be considered as conferring on the authority concerned the power to levy a tax which the Legislature cannot otherwise levy. A rebuttable presumption which is clearly a rule of evidence has the effect of shifting the burden of proof and it is hard to see how it is unconstitutional when the person concerned has the opportunity to displace the presumption by leading evidence." 7. Admittedly, form XXXIV No. 4135/5309 dated November 23, 2002 was issued by the Kotwan check-post for 21 GR's containing 170 packages of various description of goods and the said form XXXIV was to be surrendered by November 24, 2002 at Sainya check-post. At the time of inspection, made by the Assistant Commissioner (Mobile Squad) on November 24, 2002, the vehicle was found standing loaded with the goods. At this stage, it is pertinent to state that it is not the case of Revenue that any goods of the vehicle was found unloaded or unloading of the goods was going on. It is also not the case of the Revenue that the period for surrendering the said form XXXIV was expired. It was to expire at 12.00 P.M. on November 24, 2002. According ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arge or hirer of the vehicle to obtain form XXXIV and to surrender at the exit check-post. In case, if the form XXXIV is not surrendered, it is the transporter against whom the presumption is drawn as contemplated under section 28-B of the Act and the transporter would be treated as "dealer". It is made clear that transporter may be owner of the vehicle, which includes hirer and person-in-charge and driver represents, owner of vehicle. This situation has also been considered by the honourable Supreme Court in the case of Sodhi Transport Co. case [1986] 62 STC 381; 1986 UPTC 721. The honourable Supreme Court observed as follows: "When once a finding is recorded that a person has sold the goods which he had brought inside the State, then he would be a dealer even according to the definition of the word 'dealer' as it stood from the very commencement of the Act subject to the other conditions prescribed in this behalf being fulfilled. A person who sells goods inside the State of Uttar Pradesh and fulfills the other conditions prescribed in that behalf is a dealer even as per amendments made in 1959, 1961, 1964, 1973 and 1978 to the said definition. There is, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and description of the goods are concerned they were found exactly same but the difference in number of pieces were found. It is pertinent to state at this stage that in GR only number of packages are mentioned and not the pieces. In form XXXIV also number of packages are only mentioned and not the pieces. The pieces are only found mentioned in the bill. Learned counsel for the applicant contended that form XXXIV was issued with reference to the GR and only number of packages are mentioned in form XXXIV and therefore, what was required to be verified was the number of packages. He submitted that the transporter has no control on the consignor and it is wholly impossible and impracticable to open each and every package and verify the number of pieces inside the packages at the time of booking. He further submitted that verification should be made with reference to the packages, which is mentioned in form XXXIV and not with reference to number of pieces contained inside the packages and if the authority wants to verify the goods with reference to the number of pieces, such verification should also be made at the entry check-post while issuing form XXXIV and if form XXXIV was issued ..... X X X X Extracts X X X X X X X X Extracts X X X X
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