TaxTMI 
TaxTMI 
2010 (6) TMI 730
X X X X Extracts X X X X
X X X X Extracts X X X X
....truck, bearing Registration No. HR38E-4721, at Jashodharpur. The aforesaid truck was carrying cast iron dust purchased by the respondent from M/s. Sagar Enterprises. It is not a matter of dispute, that Jashodharpur is located in the State of Uttarakhand. Not only was the fine/penalty imposed on the aforesaid truck by the concerned Magistrate at Kotdwara, but the assertion made at the hands of the driver of the truck under reference was taken into consideration to establish, that the truck was travelling over the territory of the State of Uttarakhand. It is the admitted case, that the police authorities of the State of Uttarakhand brought the aforesaid factual position to the notice of the trade tax authorities. Based on the fact, that form XXXI was not presented, when the truck was impounded, the assessing authority arrived at the conclusion, that the action of the respondent herein, namely, M/s. Satyam Traders, was in violation of section 28A(2) of the Uttar Pradesh Trade Tax Act, 1948. Section 28A aforesaid is being extracted hereunder: "28A. Import of goods into the State against declaration.- (1) Any person (hereinafter in this section referred to as the importer) who intends....
X X X X Extracts X X X X
X X X X Extracts X X X X
....or barrier that he may cross, if he shows such receipts to the officer in-charge of such other check-post or barrier; (c) . . . (d) the importer shall preserve the other copy of the declaration and other documents delivered to him or to his agent under clause (a) for such period as may be prescribed and produce them before the assessing authority whenever demanded by it within such period. (3) Where such goods are consigned by rail, river, air or post the importer shall not- (a) obtain or cause to be obtained delivery thereof unless he furnishes or causes to be furnished to such officer as may be authorized in this behalf by the State Government, a declaration in the prescribed form in duplicate duly filled in and signed by him for endorsement by such officer; or (b) after taking delivery, carry the goods away or cause the goods to be carried away from the railway station, steamer or both station, airport or post office, as the case may be, unless a copy of the declaration duly endorsed by such officer is carried with the goods. (4) Where such goods are brought into the State as personal luggage, the person bringing them shall carry with him the declaration in the prescribed f....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... office as defined in the Indian Post Office Act, 1898." A perusal of sub-section (2) of section 28A leaves no room for any doubt, that the importer is to furnish to the consignor a declaration in the prescribed form, where goods are being consigned by road. The prescribed form, in so far as section 28A of the Uttar Pradesh Trade Tax Act, 1948, is admittedly form XXXI. Since form XXXI had not been furnished by the importer, the violation of the provision of section 28A(2) of the Uttar Pradesh Trade Tax Act, 1948 was considered to have been established, and as such, the assessing officer imposed a penalty on M/s. Satyam Traders, Talla Mota Dhak vide an order dated October 22, 2003. The respondent, i.e., M/s. Satyam Traders, Talla Mota Dhak, assailed the order dated October 22, 2003 by preferring an appeal. The appellate authority, namely, the Joint Commissioner (Appeals II), Commercial Tax, Uttarakhand, Dehradun, passed an order dated June 26, 2007, wherein it arrived at the conclusion, that the goods under reference had not traversed into the State of Uttarakhand. The said appellate authority also concluded that the respondent herein had not violated the provisions of section 28A....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nto consideration facts, which were not available in any pleadings before it. In this behalf, our attention has been invited to the observations recorded by the Commercial Tax Tribunal, Uttarakhand, wherein it, inter alia, noticed as under: "Where the boundaries of two States meet, then the police of the two States to maintain their supremacy often, border disputes are pending between Uttar Pradesh and Haryana police for a long time and it has happened several times that the police of both the States armed with weapons has faced each other. Under such a situation, this possibility cannot be denied that the truck and goods were checked by the Uttaranchal police on the common passage and was challaned on finding it overload. If the geographic situation is looked at, the Uttaranchal police check-post on Najibabad-Kotdwara border is located in the limits of Uttar Pradesh on the left side of the road leading to Joshodharpur as was situated at the time of undivided Uttar Pradesh and the check-post of commercial tax is established on the other side, i.e., right side of the road in Kotdwara in Uttaranchal State. A common passage is situated between the two States. This fact lends support ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... in making a statement to the authorities under the Uttar Pradesh Trade Tax Act, 1948. The aforesaid two factual aspects, in our view, lead to the undisputable conclusion, that the truck, bearing Registration No. HR-38E-4721, was impounded, while it was travelling over the territory of the State of Uttarakhand. In so far as the observations recorded by the Commercial Tax Tribunal, Uttarakhand (which have been extracted hereinabove) are concerned, we are satisfied that the same are merely conjectural in nature. Since conjectures/surmises cannot be the basis of recording a finding of fact, the findings recorded by the appellate authorities on the basis of the same must necessarily be ignored. We shall now examine whether the respondent had violated the mandatory provisions of section 28A(2) of the Uttar Pradesh Trade Tax Act, 1948. In so far as the instant aspect is concerned, the driver of the truck under reference did not produce any document, nor did he produce form XXXI when the same was called for on September 11, 2003 by the trade tax authorities. The appellate authorities have overlooked the non-production of form XXXI on September 11, 2003 by asserting, that the sale made on....