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TMI Blog2017 (12) TMI 341X X X X Extracts X X X X X X X X Extracts X X X X ..... State of U.P. and there is no allegation that the goods were being or had been unloaded inside the State of U.P. - the goods were infact being transported from Rajasthan to Assam as disclosed in the Tax Invoice and other documents found accompanying the goods - breach was purely technical. Mis-description of goods - Held that: - the goods (whatsoever their correct description be) had originated from outside the State and were being transported outside the State, using the State of U.P. as a transit State, and the goods appear to have been seized near the exit point in State of U.P. the proper officer should have, at most made an endorsement to that effect and allowed the goods to pass through the State of U.P. The seizure order as also the penalty order are wholly unsustainable - petition allowed - decided in favor of petitioner. - Writ Tax No. 779 of 2017 - - - Dated:- 30-11-2017 - Hon'ble Bharati Sapru And Hon'ble Saumitra Dayal Singh, JJ. For the Petitioner : Shubham Agrawal For the Respondent : C.S.C.,A.S.G.I. ORDER Heard Shri Shubham Agrawal, learned counsel for the petitioner and Shri C.B. Tripathi , learned Standing Counsel for the depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the State of U.P. At the time of detention they were near their exit point in the State of U.P., for onward journey to Assam. There is also no dispute as to the identity of the other consignment of 'sweet supari'. Then on 03.11.2017, the seizure orders appears to have been passed, which records two reasons. First, seizure has been effected on account of TDF being absent and second, because on physical verification the goods mentioned in the invoice no. 51 as 'Refined Palm Oil' were found to be different being' Ujala Shudh Deshi Ghee'. Thereafter, it appears that a show-cause notice issued to the petitioner on the same day i.e. 03.11.2017 proposing to impose penalty under Section 129 (3) of the Act. In that show-cause notice also there are only two allegations i.e. of the TDF being absent and on physical verification different goods being found in place of 'Refined Palm Oil'. The petitioner then filed it's reply to the show-cause notice through the driver of the Truck and explained that the consignment of the disputed goods in question was of Refined Palm Oil and that both consignment of goods were being transported from Rajasthan to As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revenue impact inasmuch as the revenue is burdened to specifically allege and establish that the alleged violation of the Act and/or the Rules, as may be alleged, has been caused by the assessee with intention to evade payment of tax. It is thus submitted that in the instant case the first real allegation that arises is the absence of TDF. However, in view of the fact that full details of the transactions and place of its origin and also its destination were found mentioned in the tax invoice and other documents found accompanying the goods, in the first instance there was prima facie evidence in support of the claim raised by the petitioner that the goods were passing through the State of U.P and were not meant to be unloaded, consumed or sold inside the U.P. Learned counsel for the petitioner further submits that the goods have been seized at 'Gorakhpur', which undeniably is the border district of the State of U.P. with State of Bihar. The revenue also does not contend or allege that the goods had been loaded from inside the State of U.P. Thus, by necessary implication, the revenue admits that the goods have originated from outside the State of U.P., in this case R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P. Lucknow reported in 2005 NTN (28) 198, wherein dealing with similar situation it has been observed as follows:- The objection of the check post officer that in the builty or in the invoice it was not mentioned that the goods would be transferred in another vehicle and no explanation in this regard has been given is irrelevant. What had been happened prior to the arrival of the vehicle at the entry check post is wholly irrelevant. The objection of the check post officer that a different goods were found than the goods mentioned in the challan is also baseless. Perusal of the challan shows that the goods mentioned is cereal Based Blanded Food (Sattu). Show cause notice says that on verification it was found that in the packing, constituents of the goods mentioned are wheat, sugar, rice, soyabeen, vitamin and mineral. Therefore, in my opinion, there was no difference in the goods mentioned in the invoice and the goods mentioned in the packing. The items mentioned in packing are the constituent of the Cereal Based Blanded Food for which invoice was issued. The word Sattu is mentioned in bracket. It is seen that one particular item is called by different name and are also unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were unloaded within the State of U.P. or found to be different or not tallying with those mentioned in the form or that they were not properly accounted. While the aforesaid two judgments arise under different enactments being U.P. Trade Tax Act, 1948 and the U.P. VAT Act, 2008, however, learned counsel for the petitioner submits that a similar interpretation is required to be made under Section 129 of the Act in the context of the situation arising in the present case. Opposing the aforesaid argument, learned counsel for the revenue Shri C.B. Tripathi submits that under Section 129(1) of the Act, the goods are exposed to seizure and penalty the moment there is a violation of the Act or the Rules. In so far as it is not disputed that the transaction involved transit of goods through the State of U.P. the goods should have been accompanied with TDF, over and above the Tax Invoice and other documents of transportation of goods. The contravention was thus complete and no further fact or intention was required to be established by the revenue to either seize the goods or impose the penalty. In this regard, Shri C.B. Tripahti, learned counsel for the revenue submits that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of notice of penalty, it is difficult to sustain the penalty. Then, as to absence of TDF, though it amounted to a breach of the Rules, yet, in the entirety of the facts circumstances of this case, as admitted to the revenue, it does appear that goods were being transported from Rajasthan to Assam. Also, since the goods had reached near the exit point in the State of U.P. and there is no allegation that the goods were being or had been unloaded inside the State of U.P., we are of the opinion that the goods were infact being transported from Rajasthan to Assam as disclosed in the Tax Invoice and other documents found accompanying the goods. The breach was purely technical. Last, as to alleged mis-description of goods, we find, in view of it being established that the goods (whatsoever their correct description be) had originated from outside the State and were being transported outside the State, using the State of U.P. as a transit State, and the goods appear to have been seized near the exit point in State of U.P. the proper officer should have, at most made an endorsement to that effect and allowed the goods to pass through the State of U.P. It may however be made clear, a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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