ABHINAVA UPADHYA,J. - (1.) THE applicant is a transporter and has come up before this Court against the order of the Tribunal dated 20.10.2009 passed in Second Appeal No. 244 of 2009, relating to the assessment year 2009-10.
(2.) THE facts in brief are that the certain consignments from M/s Ericsson India Pvt. Ltd., Jaipur, Rajasthan was assigned to the applicant for being transported to M/s Dishnet Wireless Ltd, Patna, Bihar. In pursuance of the aforesaid assignment, the goods were being transported by the applicant and was on route to Patna, Bihar, but the same was intercepted by the Assistant Commissioner, Commercial Tax, Mobile Squad Unit, Firozabad on the highway between Firozabad and Sikohabad. It was found that with the aforesaid consignment, the duly filled up and down loaded transit form from the official website of the department, as per the new practice adopted, pursuant to the circular of the Commissioner dated 30.07.2009, was not accompanied, and therefore, the goods were detained. It has been stated that the goods are in the nature of Telecom equipments in two consignments, first worth Rs.19,43,931/-and the other for the value of Rs.38,11,269/-, therefore, in absence of duly filled up and down loaded transit form, the said goods were detained. It has also been stated that after the detention of the goods, on the same day, duly filled and down-loaded transit form for the first consignment of Rs.19,43,931/- was produced before the concerned authority, but the duly filled down-loaded transit form for the other consignment of Rs. 38,11,269/- could not be produced as the same could not be down-loaded from the official website of the department. Shri Suyash Agrawal, holding brief of Shri R.R. Agrawal, learned counsel for the applicant stated that the goods were all accounted for and were accompanied by relevant bills and builties, invoices, and challan and also covered by the Declaration Form-IX under Bihar Value Added Tax Rules, 2005 for bringing the goods from out side the State of Bihar. It has also been submitted that it is not the case of the department that the goods were being unloaded or were in the process of being unloading within the State of U.P., nor there is any finding that the said goods were being brought in the State of U.P. for the purpose of sale or the goods were found not on the route which is normally taken for going to the declared destination in Patna, Bihar. Therefore, merely in absence of duly filled down loaded transit form, the adverse inferences drawn by the authority are totally misconceived and cannot be sustained specially in view of the fact that the other documents relating to the goods, namely invoices, bills and builties, challan and Form-IX under the Rules conclusively prove that the said goods were being transported from out side State of U.P. to a destination out side State of U.P.
(3.) LEARNED counsel appearing for the applicant relied upon a decision of this Court in Sales/Trade Tax Revision No. 1052/09, in which in the similar circumstances, this Court had directed the release of the goods on furnishing security other than cash or bank guarantee. According to the learned counsel appearing for the applicant, the said decision was also of the same applicant, between the same parties.;