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TMI Blog2010 (7) TMI 926X X X X Extracts X X X X X X X X Extracts X X X X ..... d circumstances, no presumption can legitimately be drawn that the goods were not actually coming from outside U.P. Thus, the penal provision of section 13A(4) of the Act does not get attracted. Thus the impugned order of the Tribunal dated August 2, 2006 is unsustainable and is hereby set aside and that of the Joint Commissioner (Appeal), Trade Tax, Ghaziabad dated February 15, 2006 is restored and affirmed. - 1693 of 2006 - - - Dated:- 23-7-2010 - PANKAJ MITHAL , J. PANKAJ MITHAL J. The assessee is a transporter. He has filed this revision against the order of the Tribunal dated August 2, 2006 passed in Second Appeal No. 134 of 2006, Commissioner, Trade Tax, U.P. v. S.G. Express, Vishnu Gali, Vishwas Nagar, Sahadara, Delhi whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g U.P. on September 8, 2005. Even though the assessee was issued a transit pass which he had validly submitted at the exit check-post, penalty proceedings under section 13A(4) of the Act were drawn against him and a penalty of Rs. 80,000 was imposed. The said penalty order on appeal was set aside by the Joint Commissioner (Appeal), Trade Tax, Ghaziabad vide order dated February 15, 2006. However, on the second appeal preferred by the Department, the penalty order has been restored. Thus, this revision under section 11 of the Act has been preferred by the assessee. I have heard Sri Kunwar Saxena, learned counsel for the assessee and Sri Bipin Kumar Pandey, learned standing counsel for the respondents. Sri Saxena has argued that once th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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 of the State shall be on the owner or person in-charge of the vehicle. Explanation. For the purpose of this section, the hirer of the vehicle shall also be deemed to be the owner of the vehicle. From a plain reading of section 28B of the Act it is evident that for drawing the presumption of sale of goods within the State of U.P. two conditions are necessarily to be satisfied. First, the owner or the person incharge of the vehicle has failed to obta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uly produced the same at the exit check-post within time. Here the obtaining of transit pass and its surrender is in conformity with the provision of section 28B of the Act. In Madhya Bharat Transport Carrier, Agra v. Commissioner of Trade Tax, U.P., Lucknow [2006] 143 STC 493 (All); [2003] 23 NTN 1009, it has been held that all that is required to be seen is whether the goods have actually been brought from outside of U.P. and taken outside of U.P. and that the goods must tally with the accompanying documents and as such it is wholly irrelevant whether the consignor or consignee are traceable or not. In Murliwala Agrotech Ltd. v. Commissioner of Trade Tax, U.P., Lucknow [2005] 28 NTN 198 it has been held by this court that the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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