JUDGMENT R.B. Misra, J.
This trade tax revision has been preferred under Section 11 of the U.P. Trade Tax Act, 1948 (in short called "the Act") against the order dated July 26, 2002 passed in Appeal No, 148 of 2002 (2002-2003) under Section 13-A(6) of the Act.
1. Heard Sri Kunwar Saxena, learned counsel for the applicant/ revisionist as well as Sri B.K. Pandey, learned counsel for the opposite party/respondent and with the consent of the parties this revision is disposed of finally at this stage finally under the second proviso to Rule 2 of chapter XXII of the Allahabad High Court Rules, 1952.
2. The brief facts necessary for adjudication of the present revision are that the applicant carried business of manufacture and sale of shoes for which latex (rubber) was the raw materials and 42 drums of same, valued Rs. 2,49,690 were being imported from out of the State which was examined at the check-post on April 25, 2002 and the person in-charge of the vehicle/driver produced documents including "form 31" duly filled in, goods receipt (G.R.)., sale invoice and other documents where the goods were detained on the ground that according to the letter dated April 22, 2002 of the transporter the dealer of Allahabad was to take the delivery of the aforesaid goods on payment of freight. On the basis of this it was believed that the import was being made by the Allahabad dealer with a view to evade payment of tax, therefore, the goods were seized on May 3, 2002 under Section 13-A read with Section 28-A of "the Act" and on the estimated value of Rs. 2,50,000 security at the rate of 40 per cent, i.e., Rs. 1,00,000 was demanded to release the goods. The applicant/ revisionist filed an application under Section 13-A(6) of "the Act" before the Assistant Commissioner whereupon the Assistant Commissioner dismissed the application (annexure 3). The learned Tribunal partly allowed the second appeal, and upheld the seizure of the goods and reduced the amount directing to deposit double the amount of tax as security.
3. In the case of Shri Ram Automobiles v. State of U.P, 1990 UPTC 805 (DB) where the seizure order or even the order of Assistant Commissioner did not disclose any reason to justify the prima facie seizure when the invoice was in the name of petitioner and it was mentioned in the "form 31" that goods were being transported by them but on mere mentioning that said import was earmarked for the petitioner's man, such seizure was held not justified.
4. In Indian Steels, Jhansi v. Commissioner of Sales Tax 1992 UPTC 1132, it was observed that ".....it is evident that all the documents were in the name of the assessee and the only basis for holding that the agent was the real importer was the letter. This letter merely asked the agent to unload the goods at Agra. This cannot be construed to mean that the agent was the importer of the goods. The Tribunal and the lower authorities acted arbitrarily and on the basis of conjectures and surmises in holding that the agent was the real importer of the goods. There was no basis for such a finding and hence the impugned order is vitiated in law".
5. In the facts of the present case also, the check-post officer seized the goods on the assumption that the real importer was the Allahabad dealer and not the applicant-revisionist. The Tribunal, however, justified the seizure on the ground that the applicant intended to evade payment of tax in reference to the letter dated April 22, 2002 that the goods instead of being brought to Kanpur, as shown in the documents, was to be delivered at Allahabad. It is submitted that mere diversion of the goods from Kanpur to Allahabad could under no circumstance be taken to be the intention to evade payment of tax.
6. In [2001] 123 STC 489 ; 2001 UPTC 219 (Commissioner of Sales Tax v. S.R. Paper Cores), this Court did not interfere the finding of learned Tribunal which allowed the appeal and had deleted the imposition of penalty and had found that there was no intention to evade any payment of tax as the consignment was duly accompanied by bill and "form 31", and merely because in the gate pass the name of M/s. S.K. Tubes was mentioned, no violation of Section 28-A of "the Act" or no intention to evade any payment of tax was said to be made. The findings recorded by the Tribunal was treated to be pure findings of fact based on appreciation of evidence and material on record.
7. I have heard learned counsel for the parties and have perused the documents and records as the consignment was being brought on proper documents, bills necessary for transportation and merely on the basis of a letter dated April 22, 2000, the presumption was drawn based on conjectures and surmises that the consignment was being taken for evasion of tax and no basis of such finding has even been recorded in the order of the Tribunal. Since the applicant/ revisionist is a registered dealer and is importing the said goods on duly declared "form 31", therefore, asking for security double the amount of tax payable on the estimated value of goods was not justified. Therefore, the order dated July 26, 2002 is legally not sustainable. From this point the questions of law preferred in the revision are dealt with accordingly and the goods in question are directed to be released forthwith without any security. The trade tax revision is allowed. However, this order should not make any effect on any kind of proceeding to be taken by the trade tax authorities.
A certified copy of this order may be furnished to learned counsel for the applicant/revisionist within a week on payment of usual charges.