TaxTMI 
TaxTMI 
2004 (12) TMI 686
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....he entry Check Post and did not surrender at the exit check post, therefore, the presumption as contemplated under Section 28-B had been drawn that the goods have been sold inside the U. P. Assessing Authority levied the tax on the goods in respect of which, alleged form 34 were obtained, but could not be surrendered. Applicant filed appeals before the Deputy Commissioner (Appeals). Before the Appellate Authority, applicant contended that the alleged Vehicles did not belong to it and the transactions were not related to the applicant. The Deputy Commissioner (Appeal), allowed the appeals and remanded back the matter to the officer concerned with the direction to examine whether in respect of the alleged transactions G. Rs. were issued by the applicant or not and if the G. Rs. have been issued by the applicant then only adverse inference be drawn against the applicant. After the matter was remanded, applicant asked the Assessing authority to show the G. Rs. which were with the consignments in question and which were shown at the time of preparation of Form 34, but no such G. Rs. were shown to the applicant nor Form 34 were shown inspite of the specific reques....
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....mitted that Panji-3 is a register alleged to have been maintained at the entry check post in which contents of form 34 were written, but admittedly, the signature of driver or Vehicle incharge have not been taken. He submitted that even Panji 3 has not been confronted to the applicant and the copies of G. Rs. were also not been produced to establish that the alleged form 34 were obtained by the applicant and alleged Vehicles belong to the applicant. He submitted that mere on the basis of the alleged entries in Panji 3 it can not be presumed that the form 34 had been obtained by the applicant and the Vehicles belong to the applicant. He completely denied any connection with the alleged Form 34 and Vehicles. Tribunal has affirmed the levy of tax merely on the basis of information received from the check post which were alleged to have been given on the basis of the entries made in Panji 3. Tribunal presumed that normally the transporter hires vehicles and accordingly, in the present case also, it has been presumed that the alleged vehicles mentioned in Panji 3 register must have been hired by the applicant and treating the applicant as hirer, the presumption of s....
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....ssed by the vehicle or vessel and the time and date upto which it should be so crossed and deliver two copies of the trip sheet to the driver or person-in-charge of the vehicle retaining one copy himself. (3). The drive r or person-in-charge of the vehicle or vessel shall stop his vehicle at such Exit Check Post surrender one copyof the trip sheet and allow the other in charge of the check post to inspect the documents, consignments and goods in order to ensure that the consignment being taken out of the State are the same as mentioned in the trip sheet. The officer in charge of the Exit Check Post shall issue a receipt on the other copy of the trip sheet surrendered by such driver or person in charge of the vehicle. (4) The officer in charge of the Exit Check Post shall have the power to detain, unload and search the contents of the vehicle for the purpose mentioned in sub rule (3). The provision of Section 28-B came up for consideration before the Hon'ble Supreme Court in the case of M/s Sodhi Transport Co. & another Etc. Vs. State of U.P. and another, reported in 1986 UPTC, 721. In the said case the Apex Court up held the validity of the provision of Sec....
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....ntal powers to make the law effective. Pra-9 " The provisions of Section 28-B of the Act and Rule87 of the Rules which are impugned in these cases as mentioned above are just machinery provisions. They impose no charge on the subject. They are enacted to ensure that a person who has brought the goods inside the Sate of who has made a declaration that the goods are brought into the State for the purpose of carrying them outside the State should actually take them outside the State. If he hands over the transit pass while taking the goods outside the State then there would be no liability at all. It is only when he does not deliver the transit pass at the Exit Check Post as undertaking by him, the question of raising presumption against him would arise. We shall revert to the question of presumption again at a later stage, but it is sufficient to say here that these provisions are enacted to make the law workable and to prevent evasion. Such provisions fall within the ambit land scope of the power to levy the tax itself. Para-14 " A presumption is not in itself evidence but only makes a prima facie case for party in whose favour i....
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....ned by it. As per procedure contemplated under Rule 87, driver of the vehicle or the person-in-charge submits three copies of Form 34 at the entry check post. One copy is being retained by the entry check post officer and two copies are provided to the driver of the vehicle-in-charge. Then both copies of Forms-34, are being surrendered at the exit check post. Officer of the exit check post put the signature on both the Forms 34, retains one copy of Form 34 and return one copy of said Form 34 after necessary endorsement to the driver or vehicle in-charge. In case, if the officer concerned does not receive information from the exit check post about surrender of Form 34 issued by the entry check post or receives information that said Form 34 has not been surrendered, necessary proceeding is being taken on the presumption that goods have been sold against the owner of the vehicle or person-in-charge. In such proceeding, it is obligatory to confront the copy of Form 34 which bears the signature of the driver or the vehicle-in-charge. Form 34 is the primary evidence on the basis of which the proceeding is initiated and the adverse inference is being proposed and, therefore, it h....