TaxTMI 
TaxTMI 
2002 (8) TMI 810
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....oard and other public sector enterprises as the buyers. It appears that the applicant/ revisionist purchased component parts of the meters, such as, frames and magnet yoke, valued at Rs. 3,31,808 from Auto and General Castings Private Ltd., Delhi, a regular supplier of the applicant for which a "form 31" No. 2278535 was despatched, however, the goods in question were being transported through truck No. DL-1L/C-8997. On interception Trade Tax Officer, Mobile Squad, on April 8, 2002 found that the consignment was not accompanied with the declaration "form No. 31". Therefore, a notice purported to have been issued under section 28-A of "the Act". The reply of the applicant/revisionist was not satisfactory; therefore, goods were seized on April 10, 2002 on the estimated value of Rs. 3,32,000 and security three times to the tax payable, i.e., Rs. 99,600 was demanded to release the goods. Against the above order a representation under section 13-A(6) of "the Act" was filed before the Assistant Commissioner (Enforcement) which was rejected on April 15, 2002. Being aggrieved appeal was filed before the Trade Tax Tribunal, where it was contended on behalf of the applicant/revisionist that....
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....penalty was imposed under section 15-A(1) of "the Act". First appeal was rejected and the second appeal was also allowed and the penalty was knocked off. The revision of revenue was dismissed following the decision of Jain Shudh Vanaspati [1983] 53 STC 54 (All.); 1983 UPTC 198 with observation that "in the instant case the charge against the assessee was, as already stated, that the goods were imported without 'form 31'. This has also been held concurrently by the first appellate authority and thereafter in second appeal by the Trade Tax Tribunal. The first appellate authority had sustained the penalty on the finding that mens rea was not an essential ingredient in the imposition of penalty under section 15-A(1)(o) of 'the Act' ". 5.. In reference to Jain Shudh Vanaspati [1983] 53 STC 54 (All); 1983 UPTC 198 this Court has observed that "the Tribunal has in categorical terms recorded a finding that there was no intention to evade payment of tax when the goods were sought to be imported without 'form 31'. It has held that in the period to which the transaction related, the turnover of the assessee was exempt from the payment of tax because of the eligibility certificate granted to....
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.... and circumstances of the case, there appeared to be no intention to evade payment of tax. 9.. According to the applicant/revisionist by a series of decisions right from judgment in the case of Jain Shudh Vanaspati Ltd. v. State of U.P. [1983] 53 STC 54 (All.); 1983 UPTC 198 down to Indian Trading Co. v. Commissioner of Trade Tax 2002 UPTC 593 the consistent view of this honourable Court has been that the two conditions must co-exist for seizure of goods, namely, (1) the consignment is not accompanied with proper and genuine documents and (2) there are reasons to be satisfied that the goods were being transported in an attempt to evade payment of tax due or likely to be due under the "Act". Mere absence of form No. 31 was not sufficient to justify seizure of goods. The seizure of goods could be made only in the circumstance that there was an attempt to evade payment of tax. 10.. According to the applicant/revisionist that this honourable Court has already taken the view in the case of Commissioner of Sales Tax v. Seth Industrial Corporation 1994 UPTC 140 that judicial powers cannot be permitted to be pre-empted by passing a penalty order. The authorities therefore retained their ....
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.... the production of the copy of the order." 13.. According to the learned counsel for the applicant/revisionist he himself in the relevant financial year has used 1,264 form No. 31 and out of these has got only one "form No. 31" passed and checked from the check-post. Undisputedly in the present case goods were being transported without "form No. 31" regardless of fact that the applicant/revisionist is a registered dealer and paying tax regularly but on interception by the mobile squad of trade tax officer it was found that the goods being transported were not accompanied by "form No. 31" it was not a bona fide on the part of the applicant/ revisionist, he has himself to disclose "form No. 31" or are not availability of the check-post on the way Delhi to its destination. 14.. The applicant/revisionist could not bring the transaction to disclose to the check-post authority. Rule 83(4) of the U.P. Trade Tax provides as under: "(a) The owner, driver or any other person-in-charge of the vehicle or vessel shall, in respect of such goods carried in the vehicle or vessel as are notified under or referred in sub-section (1) of section 28-A and as exceed the quantity, measure or value spe....