RAJES KUMAR, J. - (1.) THESE are three revisions arising from the order of the Tribunal dated August 26, 2002 all for the assessment year 1993 -94.
(2.) IN all three revisions, since the common facts are involved, the same are being disposed of by a common order. The Tribunal has also disposed of three separate appeals of the three parties by a common order as the common facts and questions were involved. The brief facts of the case are that all the three parties, who are applicants in the present revisions, obtained transit passes at the Shree Nagar check -post, Hamirpur for the transportation of the goods through the State of U. P. meant for delivery at Patna, State of Bihar. Under the provisions of Section 28B of the U. P. Trade Tax Act, 1948 the said three transit passes were to be surrendered at the exit check -post, namely, Naubatpur while leaving the State of U. P. When the assessing authority received the information that the alleged three transit passes were not surrendered at the Naubatpur check -post, proceedings under Section 15A(1)(q) were initiated. It appears that the ex parte orders were passed which were reopened and thereafter show cause notices were issued to the applicants. On the date fixed neither they could appear in person nor could they furnish any reply to the show cause notices. The assessing authority passed the penalty order and levied the penalty for the violation of Section 28B of the Act. Being aggrieved by the penalty orders, the applicants filed appeals before the Deputy Commissioner (Appeals), Trade Tax, Jhansi. The Deputy Commissioner (Appeals) vide order dated April 7, 1998 rejected the appeals. Being aggrieved by the order of the Deputy Commissioner (Appeals) the applicant filed three separate appeals before the Tribunal. The Tribunal by the impugned order allowed the appeals in part. The Tribunal held that there was violation of provisions of Section 28B of the Act but reduced the quantum of penalty.
(3.) HEARD Sri Alok Kumar, learned Counsel for the applicant and Sri B. K. Pandey, learned Standing Counsel. The learned Counsel for the applicant submitted that the goods, in respect of which the transit passes were obtained from the Shree Nagar check -post, Hamirpur, were unloaded at Kanpur Central Railway Station and thereafter dispatched through railway to Patna State of Bihar where impugned goods were delivered to the respective parties. He submitted that when the goods were booked at the Kanpur Railway Station, necessary endorsement had been taken from the booking clerk of the railway in the transit pass which was submitted before the authority concerned to establish that the same goods in respect of which transit passes were obtained, were dispatched to Patna through railway. He submitted that the aforesaid endorsement clearly establishes that the goods have not been sold inside the State of U. P. and have gone outside the State of U. P. and thus the presumption raised under Section 28B of the Act stand rebutted. In the circumstances, no penalty was leviable. He further submitted that in form XXXIV it was mentioned that the impugned goods are to go to Patna through railway from Kanpur.;