R. K. GULATI, J. - (1.) This sales tax revision arises from the penalty proceedings taken under clause (q) of sub-section (1) of section 15-A read with section 28-B of the U. P. Sales Tax Act, 1948 (hereinafter referred to as "the Act" ). Section 28-B of the Act, inter alia, provides for transit of goods by road through the State and issue of transit pass. It says that when a vehicle coming from any place outside the State and bound for any other place outside the State, and carrying goods referred to in sub-section (1) of section 28-A, passes through the State, the driver or other person-in-charge of such vehicle shall obtain in the prescribed manner a transit pass from the officer-in-charge of the first check-post or barrier after his entry into the State and deliver to the officer-in-charge of the last check-post or barrier before his exit from the State, failing which it shall be presumed that the goods carried thereby have been sold within the State by the owner or person-in-charge of the vehicle. The clause (q) of sub-section (1) of section 15-A provides for penalty and it says among other things that if the assessing authority is satisfied that any dealer or person fails to obtain transit pass or to deliver the same, as provided in section 28-B of the Act, the assessing authority may direct that such dealer or person shall pay by way of penalty in addition to tax if any, payable by him, a sum not exceeding 40 per cent of the value of the goods involved. The facts in brief which led to the filing of this revision may now be stated. The revisionist-assessee M/s. Dwarika Das, it is claimed, owned a truck No. UHL 9718 and was engaged in transportation of goods by road at the relevant time. It is said that one Kailash Nath Gupta, the proprietor of M/s. K. S. Industries engaged in the business of oil at Raja Khera in the State of Rajasthan, had hired the truck of the assessee for transportation of 471 tins of mustard oil to a destination in the State of Bihar through rail from Agra. It is not in dispute that a transit pass in form 34 was obtained from the check-post Samsabad by the truck driver for transporting the goods out of the State of U. P. , by June 11, 1986. It appears that the form 34 was presented before the Sales Tax Officer, Check Post, Samsabad on July 3, 1986. When it transpired that 528 tins of mustard oil were despatched through rail in two consignments consisting of 264 tins each, the revenue authority inferred that the goods despatched through the said two consignments were not the same goods for which the transit pass (form 34) was obtained earlier but those goods had been sold within the State of U. P. It was held that the presumption envisaged under the provisions of section 28-B was clearly attracted to the instant case. On the contrary, the case of the assessee was that the two consignments which were despatched through rail, consisted of 471 tins for which the transit pass was obtained earlier plus 57 tins of mustard oil which were purchased in Agra. As the case of the assessee was not accepted, the assessing authority imposed a penalty of Rs. 35,000 under the provisions referred to earlier. That penalty was upheld in the first appeal while the Sales Tax Tribunal when it came to decide the second appeal, reduced the quantum of penalty by Rs. 28,000 upholding the action for imposition of penalty. Thus, this revision has been filed by the assessee against the order of the Sales Tax Tribunal questioning the correctness thereof. Learned counsel for the parties have been heard. In my considered view, the matter requires to be remitted to the Sales Tax Tribunal for a fresh consideration. It may be noticed at this stage that in pursuance of the order dated October 12, 1995, the learned Standing Counsel produced the original records of the penalty proceedings including those of the appellate authority and the Sales Tax Tribunal pertaining to the case of the assessee. The order of the Sales Tax Tribunal would clearly show that it sustained the penalty in part on the finding that 471 tins of mustard oil for which the transit pass had bene obtained, were not transported out of U. P. by June 11, 1986. The two railway receipts through which 528 tins of mustard oil were despatched, were dated June 9, 1986. There was also a photocopy of an invoice in respect of 57 tins of mustard oil which were purchased at Agra on June 9, 1986. That invoice was made out in the name of M/s. Raja Khera, Rajasthan. In deciding the appeal giving rise to this revision, the Tribunal has not addressed itself to these matters. It appears that Tribunal proceeded on an assumptions that till June 11, 1986, the consignment of 471 tins of mustard oil which were brought from Rajasthan to the State of U. P. , was not transported out of the State. The Tribunal observed : " It is notable that the dealer obtained transit pass for transport of 471 tins of mustard oil worth Rs. 1,17,750 from Samsabad Check Post and he was permitted to transport it out of U. P. by June 11, 1986. It is admitted that this stipulation passing of goods by June 11, 1986 was not done. " The Tribunal did not refer to the invoice of purchase in respect of 57 tins of mustard oil as to whether any purchase of those tins was made or not. The records of the first appellate authority further show that an affidavit was filed by Kailash Nath Gupta before that authority. Neither the first appellate authority nor the Tribunal has referred to that affidavit in taking their respective decisions and upholding the imposition of penalty. Another contention raised on behalf of the assessee was that since the consignor of 471 tins of mustard oil, namely, Kailash Nath Gupta had come forward and had admitted that those goods were despatched to a destination in Bihar against the railway receipts referred to earlier along with with 57 tins of mustard oil purchased in Agra, the penalty if any could have been imposed in the hands of the consignor. The assessee was not liable to any penalty. The Tribunal has not given any decision on this aspect of the matter as well. The documents referred to hereinabove, and other aspects to which the Tribunal has not addressed itself, have an important bearing on he question whether or not the impugned penalty could be sustained in law. For these reasons, the order of the Sales Tax Tribunal cannot be allowed to stand and it is accordingly set aside with the directions to the Tribunal to decide the appeal giving rise to this revision afresh in accordance with law and in the light of the observations made above. In the result, the revision succeeds in part and is allowed accordingly. There shall be no order as to costs. Petition partly allowed. .;