- (1.) The present revision under Section 11 of the U. P Trade Tax Act, 1948 (hereinafter referred to as, "the Act") is directed against the order of the Tribunal dated August 18, 2005, by which, the Tribunal has allowed the appeal of the opposite party and directed the Check-post Officer to issue transit pass.
(2.) The brief facts of the case are as follows: On July 30, 2005 driver of Vehicle No. U.P.-22/3937 applied for transit pass in respect of 225 bags of old mix scrap consisting of 54 bags brass scrap, 100 bags armature scrap, 3 bags radiator scrap, 39 bags mozak scrap, 29 bags steel M. S. scrap at Tinsukhiya check-post. The transit pass was applied for movement of goods through State of U. P. to Delhi. At the time of applying the transit pass, a bill/challan of M/s. Shiva Enterprises, Belsar Nalawadi, Assam, was filed which was issued in favour of M/s. Pawan Metal Trading Company, 9662, Sadar Bazar, Delhi for 225 bags of scrap. The seizure record shows that a copy of form XXIII as provided under Rule 43(7)(j) of the Assam General Sales Tax Rules, 1993, copy of bill/challan No. 27 of M/s. Shiva Enterprises, Belsar Nalawadi, Assam, photocopy of registration certificate under the Assam General Sales Tax Rules, 1993, builty No. 88, dated July 25, 2005 were filed. The Check-post Officer, appears to have made verification of the goods before issuing transit pass. No difference in the quantity of bags and weights of the scrap was found. However, it is alleged that in the stock, 32 bags of aluminium scrap were found which have not been disclosed and apart from 32 bags of aluminium scrap, 54 bags brass scrap, 100 bags armature scrap, 3 bags radiator scrap, 7 bags mozak scrap, 29 bags steel M. S. scrap were found. On the allegation that 32 bags of aluminium scrap have not been declared, a show cause notice was issued on August 5, 2005. It is stated that one show cause notice was also issued on July 30, 2005 on the ground that in the sale bill of M/s. Shiva Enterprises, Belsar Nalawadi, Assam, bill number has been mentioned by hand and it appears that the bill and builty have been prepared in one handwriting and registration number of purchaser was not mentioned. On these facts, it is alleged that the seller was non-genuine. It is also observed that the aluminium scrap was found which was not covered by the documents. Opposite party filed reply before the Check-post Officer along with the photostat copy of registration certificate under the Central Sales Tax (Registration and Turnover) Rules, 1957 in the name of M/s. Shiva Enterprises, Belsar, Nalawadi, Assam and registration certificate issued under the Assam General Sales Tax Rules. Registration certificate of M/s. Pawan Metal Trading Company, Sadar Bazar, Delhi issued both under the Delhi Sales Tax Rules and under the Central Sales Tax (Registration and Turnover) Rules, 1957 were also filed. In reply, it is, stated that there was no difference in the quantity of scrap. The Check-post Officer has not accepted the plea of the opposite party and passed the seizure order on August 11, 2005 asking the opposite party to deposit a sum of Rs. 7,00,056 towards security in cash and a sum of Rs. 71,390 towards trade tax. The opposite party filed an application under the proviso to Section 13A(6) before the Deputy Commissioner, Check-post, Sahayta Kendra, Timkuhi Raj, Kushi Nagar, which has been rejected vide order dated August 12, 2005. Thereafter, opposite party filed an appeal before the Tribunal which has been allowed.
(3.) Heard Sri U.K. Pandey, learned Standing Counsel and Sri Alok Kumar, learned Counsel appearing on behalf of the opposite party.;