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M/S SHIVAM ENTERPRISES KHERAGARH versus THE COMMISSIONER OF TRADE TAX U.P.

High Court of Judicature at Allahabad

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M/S Shivam Enterprises Kheragarh v. The Commissioner Of Trade Tax U.P. - SALES/TRADE TAX REVISION No. 1522 of 2000 [2007] RD-AH 2550 (15 February 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO.22

TRADE TAX REVISION NO.1522 OF 2000

M/s Shivam Enterprises, Kheragarh, Agra.       ....Applicant

Versus

The Commissioner, Trade Tax, U.P., Lucknow.   .Opp.party

***************

Hon'ble Rajes Kumar, J.

Present revision under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") is directed against the order of Tribunal dated 03.08.2000 relating to the assessment year 1997-98 arising from the appeal no.291 of 1999 by which Tribunal has confirmed the penalty under section 15-A (1) (o) of the Act at Rs.27,540/-.

Brief facts of the case are that on 04.01.1998 a show cause notice was issued by the Trade Tax Officer, Saiya check post on the ground that one tanker mustard oil purchased by the applicant from M/s Ganesh Oil Mills, Bharatpur (Rajasthan) against bill no.61, dated 04.01.1998 was being imported without declaration form. It was stated that the driver had obstructed twice in stopping the vehicle, which was caught after chase. Driver had produced bill no.61, dated 04.01.1998, issued by M/s Ganesh Oil Mills, Bharatpur (Rajasthan) and one builty no.138, dated 04.01.1998. Admittedly declaration form as required under section 28-A of the Act was not produced. Declaration form appears to have been produced thereafter but the same was not accepted and the seizure order was passéd on 04.01.1998 asking the applicant to deposit a sum of  Rs.27,540/- towards security. It appears that the goods have been released on furnishing of security. In pursuance of the seizure order show cause notice was issued under section 15-A (1) (o) of the Act. Applicant filed reply stating therein that Form-31 was available with the driver but the same could not be produced, which was subsequently produced. It was also submitted that the vehicle was brought to the check post from 10-15kms. Thus, there was no violation of section 28-A of the Act and the penalty should not be levied. Assessing authority had not accepted the plea of the applicant on the ground that the goods were being imported without declaration form. Driver had obstructed twice in stopping the vehicle and, thereafter, vehicle was caught after chasing. It has also been held that if declaration form was available with the driver, same should have been produced. View of the assessing authority has been confirmed by the first appellate authority and by the Tribunal.

Heard learned counsel for the parties.

Learned counsel for the applicant submitted that the vehicle was standing 10-15kms. before the check post from where it was brought to the check post. He submitted that the declaration form was available with the driver but the same could not be produced inadvertently. He submitted that since the bill and builty were available with the driver there was no case of an attempt to evade the tax and thus, levy of penalty is unjustified. Learned Standing Counsel relied upon the order of the Tribunal.

Having heard learned counsel for the parties, I have perused the order of the Tribunal and the authorities below.

During the course of hearing copy of the show cause notice was produced. Show cause notice reveals that while going to Khairagarh from Nagla Kamal crossing vehicle was chased and thereafter, brought to the check post. Driver had also obstructed twice. This shows that the vehicle crossed the check post and, thereafter, brought to the check post after chasing. It is wholly unbelievable that the check post officer had checked the vehicle when it was standing 10-15kms. before the check post, if it was so then vehicle would have been brought to the check post and would not have been chased. Further if the driver of the vehicle had declaration form, same could have been produced before the officer concerned. If the driver could produce the bill and builty, there was no reason why declaration form could not be produced. This shows that declaration form was not available and in the absence of the declaration form driver of the vehicle tried to transport the goods inside the State of U.P. without making the declaration at the check post. If the intent of the driver was to import the goods without avoiding the check post even in the absence of the declaration form, voluntarily declaration could have been made at the check post  on the basis of the bill and builty to avoid the penal action but in the present case driver of the vehicle tried to import the goods avoiding the check post. Thus, on the facts and circumstances of the case, it is a case of importing the goods with the intent to evade the tax. Thus, penalty has rightly been levied under section 15-A (1) (o) of the Act.

In the result, revision fails and is accordingly, dismissed.

Dt.15.02.2007

R./


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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