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TMI Blog2005 (2) TMI 857X X X X Extracts X X X X X X X X Extracts X X X X ..... e time of seeking Transit Pass, Form-32, which is declaration of import prescribed by the Uttaranchal Government under the Trade Tax Act was also produced. However, Transit Pass was denied and the goods were detained and show cause notice was issued on the ground that for the issuance of Transit Pass, G.R. No. 11051 dated 05.01.2005 for 599 bags sattu, challan No. 1312 dated 05.01.2005 and Form-32 No. 021296/201 were produced in which name of goods mentioned was Sattu while on verification it was found that in the packing, constituent of the goods mention was wheat, soyabeen, rice, sugar, vitamin and mineral. It was further stated that on enquiry it was stated that the goods was being imported through Mewar Goods Carrier, Udaipur from Udaipur to Uttaranchal in vehicle No.HR-47-9203 but in the GR no instruction was issued to the driver for the transfer of the goods at U.P. Border nor in the U.P. Border any new GR was issued and on this basis it was inferred that the goods was being imported for unregistered and non-bonafide dealer on the garb of the transit pass with an intent to evade the tax In the supplementary show cause notice it was mentioned that in challan there was a seal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State and issue of [authorization for transit of goods/--When a vehicle coming front 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 per son-incharge of such vehicle shall obtain in the prescribed manner an /authorization 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 of the State shall be on the owner or person-in-charge of the vehicle. Explanation: In a case where a vehicle owned by a person is hired for transportation of goods by some other person, the hirer of the vehicle shall for the purposes of this sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of Section 28-B has been introduced. The validity of Section 28-B of the Act has been challenged before Hon'ble Supreme Court in the case of Sodhi Transport Company and Anr. v. State of U.P. and Anr., reported in 1986 UPTC, 712 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. Hon'ble Supreme Court has upheld the validity of the provision. The Apex Court held as follows: Para 8- 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 of the Seventh Schedule to the Constitution which reads thus: 54. Taxes on the sale or purchase of goods other than news papers subject to the provisions of Entry 92-A of List I'. It is well settled that when the Legislature has the power to make a law with r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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. 8. Section 28-B of the Act is a machinery section, which has been introduced to check the evasion of tax while the goods are in movement from outside the State of U.P. to outside the State of U.P. The provision to issue transit pass at the entry check post and to surrender at the exit check post is to ensure that the good, which entered inside the State of U.P. had gone outside the State of UP. and has not been sold inside the State of U.P. The power to seize the goods is only available at the exit check post when it is found that the transporter is trying to import a different goods. Under aforesaid provisions there is no power to seize the goods at the entry check post. At the entry check post if driver of the vehicle applied for transit pass, authority has to verify the goods loaded in the vehicle and mention the name and quantity of the goods sought to be transported through the State of U.P. in the transit pass so that at the entry check post, the same may be verified at ..... X X X X Extracts X X X X X X X X Extracts X X X X
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