- (1.) M. C. AGARWAL, J. This revision petition under section 11 of the U. P. Sales Tax Act, 1948 has been preferred by the Commissioner of Sales Tax against an order dated October 11, 1993 passed by the Sales Tax Tribunal, Ghaziabad whereby it allowed the respondent's second appeal No. 169 of 1989.
(2.) I have heard Sri B. K. Pandey, learned Standing Counsel for the Commissioner-revisionist and Sri Shakeel Ahmad, learned counsel for the dealer-respondent. The respondent is a transporter and was carrying goods from Tripur to Punjab and Chandigarh. Its truck was loaded with consignment covered by 35 biltis and obtained a transit pass from Sainya entry check-post in the State of Uttar Pradesh. The transit pass was surrendered at the exit check-post, Transport Nagar, Ghaziabad where it was found that the goods in respect of 25 biltis were hosiery goods and not cloth as stated in the transit pass. The goods were seized and proceedings for levy of penalty under section 15-A (1) (o) were initiated. The dealer's contention was that since the other consignments were of cloth, by mistake the same was mentioned in respect of 25 biltis also. This explanation was not accepted and a penalty of Rs. 64,000 was levied, which was affirmed by the first appellate authority but has been cancelled by the Tribunal holding that the goods have actually been transported out of the State of Uttar Pradesh and there was only mistaken mention in the transit pass that the goods of 25 biltis was cloth and exempt from tax. This is essentially a finding of fact and there is nothing to show that when the goods were checked at the Transport Nagar check-post they were different from the goods mentioned in the biltis. Form XXXIV in which the transit pass was issued does not require mention whether the goods are taxable or not. Patently the goods were coming from outside the State and were to be transported out of the State. A mere clerical error in the transit pass would not make out a case for levy of penalty particularly because it was the duty of the officer at the entry check-post also to see that the entry in the transit pass tally with the goods mentioned in the biltis. Further, as is evident, from the facts the dealer was only transporting goods through the State and section 15-A (1) (o) could not in the circumstances of the case be invoked. The revision petition has no force and is hereby dismissed. Petition dismissed. .;