These are two revisions, under Section 11 of the U.P. Trade Tax Act (hereinafter referred to as the "Act") against the order of the Tribunal dated 24.7.2003, both relating to the assessment year 1992-93.
The applicant is a Private Limited Company, incorporated under the Companies Act, and is engaged in the business of transportation of goods from one place to another place. The applicant is the owner of the Vehicle No. RJ-20/G-0125.
It appears that M/s. IPCL, Vadodara sold Methyl Acrylate weighing 10.245 MT to M/s. CFCL, Haldia on 15.10.1992. The consignment was cleared through Excise Gate Pass No. 173. In respect of the aforesaid goods, G.R. No. 5021 was issued. The goods were loaded in Vehicle No. RJ 20/G-0125. When the aforesaid Vehicle reached at the Entry Check Post at Mugarra, District Mathura on 20.10.1992, the Driver of the Truck obtained a transit pass in Form 34, as prescribed under Section 28-B of the Act, read with Rule 87 of the U.P. Trade Tax Rules (hereinafter referred to as the "Rules"). The said transit pass was to be surrendered on Exit Check Post, namely, at Naubatpur Check Post, Varanasi.
Likewise, it appears that M/s. IPCL, Vadodara sold Methyl Acrylate weighing 10.245 MT to M/s. CFCL, Haldia on 19.8.1992. The consignments was cleared through Excise Gate Pass No. 130. In respect of the aforesaid goods, G.R. No. 10294 was issued. The goods were loaded in Vehicle No. RJ 20/G-0125. When the aforesaid Vehicle reached at the Entry Check Post at Mugarra, District Mathura on 23.8.1992, the Driver of the Truck obtained a transit pass in Form 34 as prescribed under Section 28-B of the Act, read with Rule 87 of the U.P. Trade Tax Rules (hereinafter referred to as the "Rules"). The said transit pass was to be surrendered on Exit Check Post, namely, at Naubatpur Check Post, Varanasi.
Lateron, in respect of consignment dated 15.10.1992, vide letter no.2511, dated 30.10.1992, the Trade Tax Officer, Naubatpur, Varanasi informed to the Trade Tax Officer, Check Post, Mugarra, District Mathura that the transit pass was produced at the Check Post, but neither the Vehicle was available nor any person appeared for verification of the goods. On the receipt of the aforesaid letter, the Trade Tax Officer, Check Post, Mugarra, District Mathura, issued show cause notice to the applicant to show cause that on account of non-surrender of the Transit Pass, at the exit Check Post,why it may not be presumed that the goods were sold inside the State of U.P. and why penalty should not be levied under Section 15-A(1)(q) of the Act. The applicant filed the explanation stating therein that the Transit pass was produced before the Naubatpur Check Post. The signature of the Driver was taken on a Register and the vehicle was permitted to proceed to the State of Bihar. By mistake of the Driver both the copies of the Transit pass were left. At the destination, the goods were delivered to M/s. CFCL in respect of which certificate of M/s. CFCL was filed.
Likewise, in respect of the other consignment, dated 19.8.1992 sent through the same vehicle, lateron, vide letter no. 1748, dated 1.9.1992, Trade Tax Officer, Check Post, Varanasi informed the Trade Tax Officer, Mugarra, Mathura that though Transit Pass was produced, but neither the vehicle nor the goods were produced for verification. On receipt of the aforesaid letter, the Trade Tax Officer, Mugarra, Mathura issued show cause notice to the applicant to show cause that on account of non-surrender of Transit Pass, at Exit Check Post, why it may not be presumed that the goods were sold inside the State of U.P. and why penalty should not be levied under Section 15-A(1)(q) of the Act. The applicant filed the explanation stating therein that the Transit pass was produced before the Naubatpur Check Post. The signature of the Driver was taken on a Register and the vehicle was permitted to proceed to the State of Bihar. By mistake of the Driver both the copies of the Transit pass were left. At the destination, the goods were delivered to M/s. CFCL in respect of which certificate of M/s. CFCL was filed.
Photostat copies of the Toll Receipt/Slip of P.W.D. West Bengal were filed. A copy of the receipt issued by the Petrol Pump relating to purchase of Diesel were also filed. It was contended that the goods have gone outside the State of U.P. and the presumption under Section-28-B of the Act stood rebutted.
The assessing authority has not accepted the explanation of the applicant on the ground that the letter sent by the Check Post Officer, Naubatpur clearly states that the Truck and the goods were not produced before the Exit Check Post Officer. It has also been observed that in Bill/Receipts, the Truck number is not mentioned. In the payment slips, there is no signature and the seal on the G.R. is not clear. The assessing authority inferred that the goods have been sold inside the State of U.P. He valued the goods and levied penalty to the extent of 40% of the value of the goods in both the cases.
Being aggrieved by the aforesaid two penalty orders, the applicant filed two appeals before the Assistant Commissioner (Judicial), Trade Tax, Mathura. Both the appeals have been rejected vide order dated 16.3.1994. Aggrieved by the order of the Assistant Commissioner (Judicial), the applicant filed two appeals before the Tribunal.
The Tribunal by the impugned order dated 24.7.2003, allowed both the appeals in part. The Tribunal has confirmed the levy of penalty, under Section 15(1)(a)(q) of the Act, but has reduced the quantum of penalty to 20% of value of the goods.
Being aggrieved by the order of the Tribunal, the applicant filed these two revisions.
Heard Sri S.D. Singh, learned counsel for the applicant and Sri B.K. Pandey, learned Standing Counsel.
Learned counsel for the applicant submitted that the consignment dated 19.8.1992 was cleared from the factory of IPCCL, Vadodara against Excise Gate Pass No.130 and the consignment dated 15.10.1992 was cleared against the Excise Gate Pass No.173. The Methyl Acrylate is Excisable goods under the Central Excise Act. On the receipt of the goods, the purchaser had availed Modvat credit and necessary entry was made in RG-23-A Register. A copy of the R.G.-23-A has been filed to show the entry of Excise Gate Pass No. 173. The purchaser has also given certificate confirming the receipt of the goods. The applicant filed an affidavit before the Tribunal stating therein that the goods against the Excise Gate Pass No. 173, dated 15.10.1992 were delivered to M/s. CFCL, Calcutta on 23.10.1992. The toll receipts and the receipts of the petrol pump for the purchases of the diesel have been filed as Annexure-8 of the revision. He submitted that aforesaid documents clearly establishes that the goods have gone across the State of U.P. and have been delivered to the purchaser in West Bengal and the presumption under Section 28-B has been rebutted.
Sri B.K. Pandey, learned Standing Counsel, submitted that so far as the consignment dated 19.8.1992 is concerned, it is claimed to have been cleared from the factory against Excise Gate Pass No. 130. In the certificate issued by M/s. CFCL, the date of the receipt of the goods is not mentioned. A copy of the reply has not been filed. In both the cases, the reply relating to transaction dated 15.10.1992 has been filed. The receipts of the petrol pump relating to the purchase of diesel relating to the consignment dated 15.10.1992 appears to be of October, 1992 and do not relate to the consignment dated 19.8.1992. He submitted that copy of the Excise Gate Pass and Register 23-A, Part II have not been filed before the Check Post Officer and appears to have been filed before the Tribunal. In respect of the second consignment, he submitted that in the toll receipt neither the date nor the vehicle number is mentioned and, therefore, the toll receipts cannot be relied upon. He submitted that the petrol pump receipts, filed alongwith the application, demolish the explanation given by the applicant. The petrol pump receipts of Surya Filling Station, Kanpur Dehat is dated 24.10.1992, while the petrol pump receipt issued by the Punjab Service Station Varanasi is dated 21.10.1992, the petrol pump receipt of Ram Bhagat Hari Prasad, Durgapur is dated 23.10.1992 and the receipt of petrol pump of Bikna is dated 22.10.1992. According to him, if the diesel has been taken at Kanpur on 24.10.1992, how the diesel could be taken at Varanasi on 21.10.1992 at Durgapur on 23.10.1992 and at Bikna on 22.10.1992. He further submitted that the Check Post Officer, Naubatpur has confirmed that the Transit Passes were produced, but the vehicles and goods were not available for verification. If the Transit passes could be produced, there was no reason for not producing the vehicles and the goods for verification and this situation occurred not only once, but twice. Therefore, it is a clearcut case where the goods have not crossed the State of U.P and have been sold inside the State of U.P. and an attempt had been made to get the Transit passes endorsed without vehicles and goods. The Tribunal has also observed that the Form-C have not been produced and no explanation has been given in this regard.
Having heard learned counsel for the parties, I have perused the impugned orders and considered the rival submissions.
No toll receipt and diesel receipt relating to the transaction dated 19.8.1992 have been filed alongwith the revision. The copy of the reply filed before the Check Post Officer in respect of the said transaction has also not been filed. The copy of the toll receipt, the diesel receipt and the reply relating to the subsequent transaction dated 15.10.1992 have been filed. The diesel receipts filed in respect of the second transaction also demonstrate that the explanation offered by the applicant is not correct. The photostat copies of Excise Gate and R.G.23-A have not been filed before the Check Post Officer and the First Appellate authority. The Excise Gate Pass and the Register in Form-23-A, Part II in respect of transaction dated 19.8.1992 appears to have been filed before the Tribunal. The affidavit filed alongwith the revision petition does not say anything about the transaction dated 19.8.1992. The affidavit has been filed before the Tribunal giving details of the transaction dated 15.10.1992. The Sales Tax Officer, Naubatpur Check Post in his letters has specifically informed that only the Transit Passes were produced, but the vehicles along with the goods had not been produced for verification. When the Transit Passes could be produced, there appears to be no reason why vehicles and the goods could not be produced for verification. More so, it appears that the Transit Passes had only been left and no other papers had been produced to get them endorsed by the officer concerned. This situation happened not only once, but on two occasions. There may be a mistake on one occasion, but the repeated mistakes reveal the intention of the applicant to get the Transit Passes cleared from the Exit Check Post without verification of goods. If the purchases would be genuine and the goods would have been received at West Bengal, the Form-C contemplated under the Central Sales Tax Act to avail the benefit of concessional tax benefit would have been issued. No explanation has been offered by the applicant that why Form-C could not be issued in respect of these two transactions and if issued why details of such Form-C could not be furnished at any stage.
In view of the above, having regard to the totality of the facts and circumstances, I do not find any error in the conclusion drawn by the authorities below that the applicant failed to rebut the presumption under Section 28-B of the Act that the goods have not been sold inside the State of U.P. and have gone outside the State of U.P. Section 28-B of the Act is a machinery Section. It has been introduced in the Statute to check the evasion of the tax. If the goods are coming from the outside of the State of U.P. and are intended to be transported outside the State of U.P., the person concerned has to obtain transit pass at entry check post and has to surrender the same at the exit check post so that it may be established that the goods are not being sold inside the State of U.P. and has gone outside the State of U.P. In case of failure to surrender the transit pass at the exit check post, Section 28-B contemplates presumption of sale of goods inside the State of U.P. Undoubtedly, the presumption is a rebutable presumption which can be rebutted by adducing evidence. In the present cases, as stated above, the applicant failed to rebut the presumption.
In view of the above, both the revisions are devoid of merits and are, accordingly, dismissed.
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