Ashwani Kumar Mishra, J. - (1.) Despite service of notice upon the assessee, none has appeared. These three revisions have been taken up for hearing, and are being disposed of after hearing the learned Standing Counsel, and upon perusal of the materials brought on record.
(2.) The assessee herein is a Railway Container Contractor, who has been found to have not maintained adequate records, which may depict as to for whom the goods itself had been brought in State of Uttar Pradesh. The Assessing Authority, in such circumstances, has proceeded to treat the assessee as dealer, by virtue of Section 2(h)(ix) of the U.P. Value Added Tax Act, 2008. An appeal preferred by the assessee was rejected. However, the second appeal filed before the tribunal by the assessee has been allowed, primarily on the ground that there is no specific provision in the U.P. VAT Act or the Rules, containing any specific provision, which obligates the Contractor to maintain record in a particular manner, regarding the identity of consigner and consignee, and to submit such records before the authority. The tribunal has also placed reliance upon the judgment of the Apex Court in State of Haryana Vs. Sant Lal, 1993 91 STC 321. The tribunal has taken the view that the assessee being a Railway Contractor, its job was confined only to transport the goods from the railway station of origin to the destination station, and they could not have been held to be dealer. The revenue is aggrieved by such determination of the tribunal and has preferred the instant revision under Section 58 of the Act.
(3.) Sri B.K. Pandey, learned Standing Counsel has invited attention of the Court to Section 2(h)(ix) of the U.P. VAT Act, which reads as under:- "2.(h) "dealer" means any person who carries on in Uttar Pradesh (whether regularly or otherwise) the business of buying, selling, supplying or distributing goods directly or indirectly, for cash or deferred payment or for commission, remuneration or other valuable consideration and includes,-(I) ...(ii) ...(ix) a railway container contractor, an air cargo operator, a courier service provider, who fails to disclose the name and complete address of consigner or consignee or if discloses such name or address of consigner or consignee is found bogus, forged or not verifiable, or the owner or person in-charge of a vehicle who obtained authorization for transit of goods from the officer in-charge of entry check post but failed to deliver the same to the officer in-charge of the exit check post;"Reliance has also been placed upon Rule 38(7) of the Rules framed under the Act, which deals with registration of Railway Container Contractor. Clause 7 of Rule 38 reads as under:-"Rule 38. Registration of railway container contractor, an air cargo operator, a courier service operator, owner or person incharge of godown or cold storage or warehouse other than transporter-(1) ...(2) ...(7) Every person under this Rule shall maintain following records:-(a) A register in respect of all consignments of goods received by him for transportation or storage;(b)Office copy of goods receipt or consignment note issued in respect of goods received by him for transportation or storage;(c) Office copy of goods challan prepared by him for delivery to the person in charge of the vehicle or driver of the vehicle;(d) a goods receipt and delivery register in respect of all consignments of goods received and delivered by him;";