M. C. AGARWAL, J. - (1.) This revision petition under section 11 of the U. P. Trade Tax Act is directed against an order dated August 4, 1995, passed by the Trade Tax Tribunal, Bareilly, whereby it partly allowed the dealer's Second Appeal No. 52 of 1993 and upholding the levy of penalty under section 15-A (1) (o) of the Act reduced the same from Rs. 54,252 to Rs. 40,689. I have heard Sri Bharatji Agrawal, learned counsel for the revisionist and Sri B. K. Pandey, learned Standing Counsel for the respondent. The revisionist's case is that it is a manufacturer of Lindane (T) for which the raw material is B. H. C. (T) which the revisionist purchases from M/s. Mico Farm Chemicals Limited, Madras. On January 19, 1991, a motor truck No. UPW-4025 carrying 180 bags of B. H. C. (T) was found to have entered the State of Uttar Pradesh without having with it a form XXXI. The said truck was carrying the consignment of B. H. C. (T) consigned by the said M/s Mico Farm Chemicals Ltd. , Madras, and was to go to the revisionist. The truck was detained by the sales tax authorities and a show cause notice was issued to the driver who in its turn contacted the revisionist. The revisionist filed its explanation before the authorities concerned on January 23, 1992, enclosing therewith the requisite form XXXI. Its case was that it receives regular supplies from the aforesaid supplier and had sent nine numbers of form XXXI to the said supplier along with its letter dated December 12, 1991, for being sent along with the consignments. While 8 consignments were duly received, the consignment covered by the form XXXI No. 2679049 was transhipped at Nagpur and the said form was somehow left behind at Nagpur, which the transporter later, despatched to the revisionist along with a latter dated January 18, 1992 and the same was enclosed with the reply. It was contended that the driver's omission to carry form XXXI with the goods was due to lack of co-ordination and was accidental. This contention was not accepted and the goods were seized and released on depositing Rs. 54,252. Later on proceedings for the levy of penalty under section 15-A (1) (o) were initiated and by order dated July 15, 1992, the Assistant Commissioner (Assessment)-II, Sales Tax, Bareilly, levied a penalty of Rs. 54,252. An appeal preferred to the Deputy Commissioner (Appeals) failed. The dealer preferred a second appeal to the Tribunal which too failed. The Tribunal has in affirming the penalty taken into account the conduct of the driver in trying to avoid that check-post and in stating that the concerned form XXXI was with another vehicle, which statement was false. In this case, admittedly, except form XXXI, the consignment was accompanied by all other papers which included an excise gate pass, invoice and goods receipt which clearly indicated that the goods were coming from the aforesaid supplier and were destined to Bareilly for the dealer-revisionist. Form XXXI was presented to the officer, who had issued a show cause notice even before the goods were seized under section 28-A (6) of the Act and there was material to show that there a transhipment of goods at Nagpur where the vehicle was changed. The revisionist had also produced evidence to show that the concerned form XXXI was sent by it to supplier at Madras along with 8 other forms, and all this was done at the first instance. There is no circumstance, whatsoever which may indicate that there was any attempt on the part of the dealer-revisionist to evade assessment or payment of tax. The Tribunal has based its order on the conduct of the driver who is said to have made an attempt to avoid the check-post and also to have made incorrect statement that the form XXXI was with another vehicle. The driver of the truck is not shown to be an employee of the revisionist. As the documents show the transporter was a common carrier and the driver's conduct cannot assign a guilty intention to the dealer-revisionist. Under the Act the driver being a person in-charge of the goods could also be proceeded with and if there was any wrongful intention on the part of the driver the department could have taken necessary action against him or his employer. The driver may have a motive for trying to avoid the check-post and making an incorrect statement as aforesaid because if the truck was stopped at the check-post for want of form XXXI, as it was bound to be, his employer would be put to loss and he would be subjected to the employer's displeasure at least. Therefore, to avoid all this he might have made an attempt to avoid the check-post and may have made an incorrect statement that the form XXXI was with another vehicle. In this case there is no reason for the Tribunal to agree with the view taken by de authorities below that form XXXI was prepared later on. This is absolutely without any evidence. This is based on mere conjecture and no enquiry was made from the supplier at Madras to verify the dealer's contention that it had sent the said form along with 8 other forms and the selling dealer had handed over the same to the transporter along with other documents. In any case, even if the dealer had somehow omitted to send form XXXI and had promptly supplied the same to the check-post officer, there was sufficient compliance of the provisions of the Act and the Rules and no penalty was deserved. For the above reasons, this revision petition is allowed and setting aside the Tribunal's order dated August 4, 1995, it is ordered that the dealer's Second Appeal No. 52 of 1993 against the levy of penalty under section 15-A (1) (o) of the Act stands allowed and the penalty is quashed in its entirety. Petition allowed. .;