- (1.) Heard Sri M.M. Rai, the learned counsel for the revisionist and the learned Standing Counsel.
(2.) The challenge in the present proceedings is to a levy of penalty for alleged contravention of the provisions of Section 28A of the U.P. Trade Tax Act, 1948 (1948 Act). A penalty has come to be imposed upon the revisionist in terms of the provisions of Section 15A(1)(o) of the 1948 Act. The case of the revisionist was that a tanker vehicle commenced its journey in the State of Rajasthan and was bound to the premises of a dealer namely Rama Phosphate Ltd. at Indore in the State of Madhya Pradesh. This vehicle is stated to have been intercepted near the Saiyan crossing just prior to the check post established by the Trade Tax authorities in the district of Agra. Since the goods were not accompanied with the documents required in terms of the provisions of Section 28A, they were detained. A notice to show cause was issued on 5 February 2000 calling upon the person in charge of the vehicle to establish cause as to why penalty be not imposed. A reply is stated to have been submitted on 7 February 2000 which, however, did not in the opinion of the authorized person commend acceptance. Accordingly a seizure order was passed and a subsequent penalty order came to be made on 30 March 2000. The revisionist took out a first appeal but the same did not meet any success. Constrained by the order of dismissal of its first appeal, it approached the Tribunal, which has while upholding the levy of penalty reduced the quantum thereof to Rs. 48,000/- being 12% of the value of the goods. It is against the said order that the instant revision has come to be instituted.
(3.) In order to appreciate the submissions advanced by Sri Rai, it would be first apposite to refer to the provisions of Section 28-A and 28-B of the 1948 Act, which read as follows: "28-A. Import of goods into the State against declaration. -(1) Any person (hereinafter in this section referred to as the importer) who intends to bring, import or otherwise receive, into the State from any place without the State, any goods other than the goods exempt under clause (a) of Section 4 in such quantity or measure or of such value, as exceeds,-- (a) (i) twenty kilograms in the case of foodgrains, cereals, pulses, soyabean, and all products thereof, and all raw materials including resin, rosin and oilseeds used for extracting oils of any kind; or (ii) rupees fifty, in the case of other goods; or (b) the quantity, measure or value notified by the State Government in that behalf, in connection with business, shall obtain the prescribed form of declaration, on payment of the prescribed fee, from the Assessing Authority having jurisdiction over the area where his principal place of business is situated or, in case there is no such place, where he ordinarily resides: Provided that where the importer intends to bring, import or otherwise receive such goods otherwise than in connection with business, he may, at his option, in the like manner obtain the prescribed form of certificate. (2) Where such goods are to be consigned by road,-- (a) the importer shall furnish to the consignor the declaration in the prescribed form in duplicate duly filled in and signed by him and the driver or any other person-in-charge of any vehicle carrying any such goods shall carry with him the copies of such declaration duly verified by the consignor in the prescribed manner together with such other documents as may be prescribed, and shall deliver one copy of such declaration,-- (i) where such goods are brought by a road on which a check-post or barrier is established under Section 28, to the officer-in-charge of such check-post or barrier before crossing the check-post or barrier, and (ii) where such goods are brought by a road on which no such check-post or barrier is established, to the officer-in-charge of the nearest check-post or barrier established under the said section before transporting such goods further within the State; and the other copy of the declaration and the remaining documents along with the goods to the importer or his agent, (b) the officer-in-charge of the check-post or barrier shall grant a receipt for the copy of declaration delivered to him and it shall not be necessary for the driver or the person-in-charge of the vehicle to deliver any copy of the declaration at any other check-post or barrier that he may cross, if he shows such receipt to the officer-in-charge of such other check-post or barrier; (d) the importer shall preserve the other copy of the declaration and other documents delivered to him or to his agent under Clause (a) for such period as may be prescribed and produce them before the Assessing Authority whenever demanded by it within such period. (3) Where such goods are consigned by rail, river, air or post, the importer shall not-- (a) obtain or cause to be obtained delivery thereof unless he furnishes or causes to be furnished to such officer, as may be authorised in this behalf, by the State Government, a declaration in the prescribed form in duplicate duly filled in and signed by him for endorsement by such officer ; and (b) after taking delivery, carry the goods away or cause the goods to be carried away from the railway station, steamer or boat, station, air-port or post-office, as the case may be, unless a copy of the declaration duly endorsed by such officer is carried with the goods. (4) Where such goods are brought into the State as personal luggage, the person bringing them shall carry with him the declaration in the prescribed form duly filled in and signed by the importer, and the importer shall submit the same for endorsement by the officer referred to in sub-section (3) by the next working day. (4-A) Where any person intends to bring, import or otherwise receive into the State from any place without the State any goods referred to in sub-section (1) otherwise than in connection with business and obtains the prescribed form of certificate, the provisions of sub-sections (2), (3) and (4) shall, mutatis mutandis, apply as if the word "certificate" were substituted for the word "declaration" used therein. (5) The driver or other person-in-charge of any vehicle carrying any goods referred to in the preceding sub-section shall stop the vehicle at every such check-post or barrier or, when so required by an officer authorised under sub-section (2) of Section 13, at any other place, and keep it stationary for so long as may be considered necessary by the officer-in-charge of the check-post or barrier or the officer authorised under sub-section (2) of Section 13, as the case may be, and allow him to search the vehicle and inspect the goods and all documents referred to in the preceding sub-section, and shall, if so required, give his name and address and the names and addresses of the owner of the vehicle and of the consignor and the consignee of the goods. (6) Where the officer making the search or inspection under this section finds any person transporting or attempting or abetting to transport any goods to which this section applies without being covered by the proper and genuine documents referred to in the preceding sub-sections and if, for reasons to be recorded, he is satisfied, after giving such person an opportunity of being heard, that such goods were being so transported in an attempt to evade assessment or payment of tax due or likely to be due under this Act, he may order detention of such goods. (7) The provisions of sub-sections (2), (6) and (8) of Section 13-A shall mutatis mutandis apply to such detention, as they apply to seizure under that section. (8) Nothing contained in this section shall be construed to impose any obligation on any railway administration or railway servant or the post office or any officer of the post office, or to empower any search, detention or seizure of any goods while on a railway as defined in the Indian Railways Act, 1890, or in a post office as defined in the Indian Post Office Act, 1898. 28-B. Transit of goods by road through the State and issue of authorisation for transit of goods.-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 an authorisation for transit of goods from the officer-in-charge of the first check-post or barrier after his entry into the State and deliver it 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: Provided that where the goods carried by such vehicle are, after their entry into the State, transported outside the State by any other vehicle or conveyance, the onus of proving that goods have actually moved out of the State shall be on the owner or person-in-charge of the vehicle. Explanation.--For the purpose of this section, the hirer of the vehicle shall also be deemed to be the owner of the vehicle.";