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TMI Blog2004 (12) TMI 686X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 28-B had been drawn that the goods have been sold inside the U. P. Assessing Authority levied the tax on the goods in respect of which, alleged form 34 were obtained, but could not be surrendered. Applicant filed appeals before the Deputy Commissioner (Appeals). Before the Appellate Authority, applicant contended that the alleged Vehicles did not belong to it and the transactions were not related to the applicant. The Deputy Commissioner (Appeal), allowed the appeals and remanded back the matter to the officer concerned with the direction to examine whether in respect of the alleged transactions G. Rs. were issued by the applicant or not and if the G. Rs. have been issued by the applicant then only adverse inference be drawn against the applicant. After the matter was remanded, applicant asked the Assessing authority to show the G. Rs. which were with the consignments in question and which were shown at the time of preparation of Form 34, but no such G. Rs. were shown to the applicant nor Form 34 were shown inspite of the specific request having been made. Assessing authority however, again levied the tax on the goods covered by form 34 on the basis of the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incharge have not been taken. He submitted that even Panji 3 has not been confronted to the applicant and the copies of G. Rs. were also not been produced to establish that the alleged form 34 were obtained by the applicant and alleged Vehicles belong to the applicant. He submitted that mere on the basis of the alleged entries in Panji 3 it can not be presumed that the form 34 had been obtained by the applicant and the Vehicles belong to the applicant. He completely denied any connection with the alleged Form 34 and Vehicles. Tribunal has affirmed the levy of tax merely on the basis of information received from the check post which were alleged to have been given on the basis of the entries made in Panji 3. Tribunal presumed that normally the transporter hires vehicles and accordingly, in the present case also, it has been presumed that the alleged vehicles mentioned in Panji 3 register must have been hired by the applicant and treating the applicant as hirer, the presumption of sales of goods relating to the alleged Form 34 by the applicant has been presumed. In my opinion, except revision nos. 1460 and 1464 of 1991, where form 34 have been filed and confronted to the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one copy himself. (3). The drive r or person-in-charge of the vehicle or vessel shall stop his vehicle at such Exit Check Post surrender one copyof the trip sheet and allow the other in charge of the check post to inspect the documents, consignments and goods in order to ensure that the consignment being taken out of the State are the same as mentioned in the trip sheet. The officer in charge of the Exit Check Post shall issue a receipt on the other copy of the trip sheet surrendered by such driver or person in charge of the vehicle. (4) The officer in charge of the Exit Check Post shall have the power to detain, unload and search the contents of the vehicle for the purpose mentioned in sub rule (3). The provision of Section 28-B came up for consideration before the Hon'ble Supreme Court in the case of M/s Sodhi Transport Co. another Etc. Vs. State of U.P. and another, reported in 1986 UPTC, 721. In the said case the Apex Court up held the validity of the provision of Section 28-B on the ground that it is a machinery provision to check the evasion of tax. It has been further held that presumption under Section 28-B of the Act is rebuttable. Following observa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s brought the goods inside the Sate of who has made a declaration that the goods are brought into the State for the purpose of carrying them outside the State should actually take them outside the State. If he hands over the transit pass while taking the goods outside the State then there would be no liability at all. It is only when he does not deliver the transit pass at the Exit Check Post as undertaking by him, the question of raising presumption against him would arise. We shall revert to the question of presumption again at a later stage, but it is sufficient to say here that these provisions are enacted to make the law workable and to prevent evasion. Such provisions fall within the ambit land scope of the power to levy the tax itself. Para-14 A presumption is not in itself evidence but only makes a prima facie case for party in whose favour it exists. It is a rule concerning evidence. It indicates the person on whom the burden of proof lies. When presumption is conclusive, it obviates the production of any other evidence to dislodge the conclusion to be drawn on proof of certain facts. But when it is rebuttable it only points out the party on whom lies the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eck post put the signature on both the Forms 34, retains one copy of Form 34 and return one copy of said Form 34 after necessary endorsement to the driver or vehicle in-charge. In case, if the officer concerned does not receive information from the exit check post about surrender of Form 34 issued by the entry check post or receives information that said Form 34 has not been surrendered, necessary proceeding is being taken on the presumption that goods have been sold against the owner of the vehicle or person-in-charge. In such proceeding, it is obligatory to confront the copy of Form 34 which bears the signature of the driver or the vehicle-in-charge. Form 34 is the primary evidence on the basis of which the proceeding is initiated and the adverse inference is being proposed and, therefore, it has to be confronted. It is the case of the revenue that they maintain panji 3 at the entry check post in which the details of Form 34 are being incorporated as a record. In my opinion, panji 3 is the record maintained by the revenue authority and has no concerned with the driver or person-in-charge. In panji 3, the signatures of the driver or the persons concerned are not been taken and, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n against the applicant on the basis of information received from check post alleged to be on the basis of Panji-3 are not justified. In the result, revision nos. 1459, 1461, 1462, 1463, 1465, 1466, 1467, and 1468 of 1991are allowed. Orders of the Tribunal are set aside. However, revision nos. 1460 and 1464 of 1991 are dismissed. Revision nos. 1502, 1503 and 1504 of 1991 have been filed by the Commissioner of Trade Tax against the order of the Tribunal dated 27.04.1991, In the present case, Tribunal has deleted the levy of tax on the ground that the tax has been levied on the parchun goods while there is no goods in the name of parchun under the Trade Tax Act. It is true that under the Trade Tax Act, there is no goods in the name of parchun, but in commercial sense, parchun goods is commonly known as general merchandise goods, thus the view of Tribunal in this regard is not justified but since in all these cases also Form 34 and G.Rs have not been confronted and the revenue failed to prove that the alleged Form s34 have been obtained by the applicant and the alleged vehicles belonged to the opposite party, order of the Tribunal does not require any interference. In the res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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