ASHWANI KUMAR MISHRA,J. - (1.) This revision is by the assessee against an order passed by the Tribunal dated 25.5.2006, passed in Second Appeal Nos.512 of 2003 and 96 of 2006 relating to assessment year 2001-2002.
(2.) The assessee had claimed benefit of Section 5(3) of the Central Sales Tax Act by contending that while the goods were in transit, it was transferred by the assessee, and as such the provisions of the Act would be attracted. The assessing authority disbelieved the plea of the assessee on the ground that the consignment was booked from Punjab to Saharanpur, whereafter it was sent to Moradabad by a different truck through a different transporter in which the assessee himself was the consignor. The first appellate authority, however, allowed the appeal of the assessee after recording a specific finding that the goods while were in transit were not delivered to the assessee, and it was on the original builty that the goods were transferred to Moradabad. The endorsement on the original builty was found to exist on record. Aggrieved by such order, the department has preferred second appeal, which has been allowed by the Tribunal. The Tribunal has observed that once the goods had reached Saharanpur from Punjab and it was through a different transport agency that the goods were further transferred to Moradabad, it would be presumed that the goods were no longer in transit and had reached its destination i.e. Saharanpur. Thus aggrieved, the assessee is before this Court.
(3.) Sri Kushagra Srivastava, holding brief of Sri R.R. Kapoor appearing for the revisionist, submits that the finding of the Tribunal that goods had seized to be in transit and that it had been delivered to assessee is based on no evidence. Learned counsel for the revisionist submits that a specific finding was returned by the first appellate authority that the goods were not delivered to the assessee which has not been examined in correct perspective nor such finding has been reversed, and without doing so the Tribunal could not have come to a conclusion that the goods had been delivered to the assessee at Saharanpur. Learned counsel further places reliance upon the statement of the transporter, which had been relied upon by the first appellate authority, as per which the goods were never delivered to the assessee, and it was merely transferred by one transporter to another pursuant to the builty endorsed for transfer of goods to Moradabad.;