IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Trade Tax Revision No. 03 of 2009 Commissioner, Trade Tax/ Commercial Tax ……… Revisionist. Versus M/s Satyam Traders, Talla Mota Dhak .………. Respondent. Mr. Sudhir Kumar, Advocate for the revision petitioner. Mr. S.K. Posti, Advocate for the respondent. Date of Judgment: 10.06.2010 JUDGMENT Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Sudhanshu Dhulia, J. J.S. KHEHAR, C. J. (Oral) M/s Satyam Traders, Talla Mota Dhak is undisputedly a registered dealer at Najibabad. Najibabad is in the State of Uttar Pradesh. M/s Satyam Traders undisputedly deals in the sale and purchase of iron scrap and ingot. In so far as the present controversy is concerned, M/s Satyam Traders purchased 18.640 metric tons of cast iron dust from M/s Sagar Enterprises, Najibabad. The instant purchase was made by M/s Satyam Traders from within the State of Uttar Pradesh. The purchase made by the respondent from M/s Sagar Enterprises, is not subject matter of the present controversy. 2. M/s Satyam Traders, Talla Mota Dhak, whilst transporting the aforestated cast iron dust, was found to be travelling over the territory of Uttarakhand. This came to be determined when the police authorities of the State of Uttarakhand challaned truck, bearing Registration No. HR- 38E-4721, at Jashodharpur. The aforesaid truck was carrying cast iron dust purchased by the respondent from M/s Sagar Enterprises. It is not a matter of dispute, that Jashodharpur is located in the State of Uttarakhand. Not only was the fine/ penalty imposed on the aforesaid truck by the concerned Magistrate at Kotdwar, but the assertion made at the hands of the driver of the truck under reference was taken into consideration to 2 establish, that the truck was travelling over the territory of the State of Uttarakhand. 3. It is the admitted case, that the police authorities of the State of Uttarakhand brought the aforesaid factual position to the notice of the Trade Tax Authorities. Based on the fact, that Form 31 was not presented, when the truck was impounded, the Assessing Authority arrived at the conclusion, that the action of the respondent herein, namely, M/s Satyam Traders, was in violation of Section 28-A (2) of the Uttar Pradesh Trade Tax Act, 1948. Section 28-A aforesaid is being extracted hereunder: “28-A. Import of goods into the State against declaration- (1) Any person (hereinafter in this section referred to as the importer) who intends to bring, import or otherwise receive, into the State from any place without the State, any goods other than the goods exempt under clause (a) of Section 4 in such quantity or measure or of such value, as exceeds- (a) (i) twenty kilograms in the case of food grains, cereals, pulses, soyabeen, and all products thereof, and all raw materials including resin, rosin or oilseeds used for extracting oils of any kind; and (ii) rupees fifty, in the case of other goods; or (b) the quantity, measure or value notified by the State Government in that behalf, in connection with business, shall obtain the prescribed form of declaration on payment of the prescribed fee from the Assessing Authority having jurisdiction over the area where his principal place of business is situated or, in case there is no such place, where he ordinarily resides: Provided that where the importer intends to bring, import or otherwise receive such goods otherwise than in connection with business, he may, at his option, in the like manner obtain the prescribed form of certificate. (2) Where such goods are to be consigned by road,- (a) the importer shall furnish to the consignor the declaration in the prescribed form in duplicate duly filled in and signed by him and the driver or any other person in-charge of any vehicle carrying and such goods shall carry with him the copies of such declaration duly verified by the consignor in the prescribed manner together with such other document as may be prescribed and shall deliver one copy of such declaration,- (i) where such goods are brought by a road on which a check- post or barrier is established under Section 28, to the officer- in-charge of such check-post or barrier before crossing the check-post or barrier; and (ii) where such goods are brought by a road on which no such check-post or barrier is established, to the officer-in-charge of the nearest check-post or barrier established under the said 3 section before transporting such goods further within the State; and the other copy of the declaration and the remaining documents along with the goods to the importer or his agent. (b) the officer-in-charge of the check-post or barrier shall grant a receipt for the copy of declaration delivered to him and it shall not be necessary for the driver or the person-in-charge of the vehicle to deliver any copy of the declaration at any other check-post or barrier that he may cross, if he shows such receipt to the officer-in- charge of such other check-post or barrier; (c) [ * * * ] (d) the importer shall preserve the other copy of the declaration and other documents delivered to him or to his agent under Clause (a) for such period as may be prescribed and produce them before the Assessing Authority whenever demanded by it within such period . (3) Where such goods are consigned by rail, river, air or post the importer shall not- (a) obtain or cause to be obtained delivery thereof unless he furnishes or causes to be furnished to such officer as may be authorized in this behalf by the State Government, a declaration in the prescribed form in duplicate duly filled in and signed by him for endorsement by such officer; (b) after taking delivery, carry the goods away or cause the goods to be carried away from the railway station steamer or both, station, air-port or post-office, as the case may be, unless a copy of the declaration duly endorsed by such officer is carried with goods. (4) Where such goods are brought into the State as personal luggage, the person bringing them shall carry with him the declaration in the prescribed form duly filled in and signed by the importer, and the importer shall submit the same for endorsement by the officer referred to in sub-section (3) by the next working day. (4-A) Where any person intends to bring, import or otherwise receive into the State from any place without the State any goods referred to in sub-section (1) otherwise than in connection with business and obtains the prescribed form or certificate, the provisions of sub-sections (2), (3) and (4) shall, mutatis mutandis, apply as if the word “certificate” were substituted for the word “declaration” used therein. (5) The driver or other person-in-charge of any vehicle carrying any goods referred to in the preceding sub-section shall stop the vehicle at every such check-post or barrier or when so required by an officer authorized under sub-section (2) of Section 13, at any other place, and keep it stationary for so long as may be considered necessary by the officer-in-charge of the check-post or barrier or the officer authorized under sub-section (2) of Section 13, as the case may be, and allow him to search the vehicle and inspect the goods, and all documents referred to the preceding sub-sections and shall, if so required give his name and address and the names and addresses of the owner of the vehicle and of consignor and the consignee of the goods. 4 (6) Where the officer making the search or inspection under this section finds any person transporting or attempting or abetting to transport any goods to which this section applies without being covered by the proper and genuine documents referred to in the preceding sub-sections and if for reasons to be recorded he is satisfied after giving such person an opportunity of being heard that such goods were being so transported in an attempt to evade assessment or payment of tax due or likely to be due under this Act, he may order detention of such goods. (7) The provisions of sub-sections (2), (6) and (8) of Section 13-A shall mutatis mutandis apply to such detention as they apply to seizure under that section. (8) Nothing contained in this section shall be construed to impose any obligation on any railway administration or railway servant or the post office or any officer of the post office, or to empower any search, detention or seizure of any goods while on a railway as defined in the Indian Railways Act, 1890, or in a post office as defined in the Indian Post Office Act, 1898.” A perusal of sub-Section (2) of Section 28-A leaves no room for any doubt, that the importer is to furnish to the consignor a declaration in the prescribed form, where goods are being consigned by road. The prescribed form, in so far as Section 28-A of the Uttar Pradesh Trade Tax Act, 1948, is admittedly Form 31. Since Form 31 had not been furnished by the importer, the violation of the provision of Section 28-A (2) of the Uttar Pradesh Trade Tax Act, 1948 was considered to have been established, and as such, the Assessing Officer imposed a penalty on M/s Satyam Traders, Talla Mota Dhak vide an order dated 22.10.2003. 4. The respondent, i.e. M/s Satyam Traders, Talla Mota Dhak, assailed the order dated 22.10.2003 by preferring an appeal. The appellate authority, namely, the Joint Commissioner (Appeals-II), Commercial Tax, Uttarakhand, Dehradun passed an order dated 26.06.2007, wherein it arrived at the conclusion, that the goods under reference had not traversed into the State of Uttarakhand. The said Appellate Authority also concluded that the respondent herein had not violated the provisions of Section 28-A (2) of the Uttar Pradesh Trade Tax Act, 1948. The order passed by the first appellate authority on 26.06.2007 was assailed by the revision petitioner herein, before the Commercial Trade Tax Tribunal, Uttarakhand, Dehradun. The appeal preferred by the revision petitioner was, however, dismissed on 19.12.2007. 5 5. The aforesaid conclusion was drawn by the Appellate Authorities on the basis of the fact, that there is a common road on the boundary of the States of Uttar Pradesh and Uttarakhand. And on account of an ongoing dispute between the police forces of the two States, it could be presumed that the police authorities in the State of Uttarakhand had impounded truck under reference from the common road between the two States and had taken the same for being challaned into the State of Uttarakhand. Needless to mention, that the truck was challaned because of being overloaded. Additionally, since the goods were subsequently transferred to M/s Amrit Varsha Udhyog Ltd., Jashodharpur on 17.09.2003, wherein Form 31 submitted by M/s Amrit Varsha Udhyog Ltd., Jashodharpur had been accepted by the Trade Tax Authorities of the State of Uttarakhand, it was sought to be concluded, that the authorities, having accepted Form 31 in respect of the same transaction and the same goods, must be deemed to have acquiesced to the transportation of the goods from the State of Uttar Pradesh to the State of Uttarakhand based on Form 31. Since Form 31 had been accepted in the transfer of goods from M/s Satyam Traders, Talla Mota Dhak to M/s Amrit Varsha Udhyog Ltd., Jashodharpur, it was concluded that the authorities were not justified in imposing a penalty for violation of the provisions of Section 28 A (2) of the Uttar Pradesh Trade Tax Act, 1948. 6. Though the instant revision petition, the Commissioner, Commercial Tax, Uttarakhand, has assailed the aforesaid two appellate orders dated 26.06.2007 and 19.12.2007. 7. The first contention advanced by the learned counsel for the revision petitioner is, that the appellate authorities erroneously arrived at the conclusion, that the truck under reference, bearing Registration No. HR-38E-4721, was not impounded within the territory of the State of Uttarakhand. It is the submission of the learned counsel for the revision petitioner, that it was wholly unjustified for the appellate authorities to take into consideration facts, which were not available in any pleadings before it. In this behalf, our attention has been invited to the observations 6 recorded by the Commercial Tax Tribunal, Uttarakhand, wherein it, inter alia, noticed as under: “Where the boundaries of two States meet, then the police of the two States to maintain their supremacy often, border disputes are pending between Uttar Pradesh and Haryana police for a long time and it has happened several times that the police of both the States armed with weapons has faced each other. Under such a situation, this possibility cannot be denied that the truck and goods were checked by the Uttaranchal police on the common passage and was challenged on finding it overload. If the geographic situation is looked at, the Uttaranchal police check-post on Najibabad-Kotdwar border is located in the limits of Uttar Pradesh on the left side of the road leading to Joshodharpur as was situated at the time of undivided Uttar Pradesh and the check-post of Commercial Tax is established on the other side i.e. right side of the road in Kotdwar in Uttaranchal State. A common passage is situated between the two States. This fact lends support to the submissions of the respondent-dealer.” In addition to the aforesaid submission, it is contended by the learned counsel for the revision petitioner, that the fine imposed on the aforesaid truck for being overloaded at Jashodharpur was never assailed by the respondent, leading to the clear inference, that the aforesaid truck was impounded at Jashodharpur itself. Secondly, it is submitted that the statement of the driver to the effect, that the truck was impounded at Jashodharpur, had also been overlooked by the Appellate Authorities without any justification whatsoever. 8. The first contention advanced by the learned counsel for the revision petitioner (as has been noticed in the foregoing paragraph) has been seriously contested by Mr. S.K. Posti, learned counsel representing M/s Satyam Traders, Talla Mota Dhak. It is the vehement submission of the learned counsel for the respondent, that it is conceivable that a single truck may pass unnoticed through a check-post, however, the fact that a large number of trucks had passed over the same check-post, and entered into the State of Uttarakhand unnoticed is not acceptable. It is, therefore, the vehement contention of the learned counsel for the respondent, that a finding of fact recorded by the two appellate authorities should not be overlooked lightly, so as to record a finding to the contrary. The factual position and the factual conclusions recorded by the Appellate Authorities were also reiterated by the learned counsel. 7 9. We have examined the submissions advanced by the learned counsel for the rival parties. It is not a matter of dispute, that truck, bearing Registration No. HR-38E-4721, was challaned at Jashodharpur. It is also not disputed, that the Joshodharpur is located in the State of Uttarakhand. The aforesaid challan was for overloading. The order by which fine/penalty was imposed on the aforesaid truck was never assailed. That being so, it is now not open to the respondent to contend, that the truck was not impounded at Jashodharpur, or that, it was not traveling over the territory of Uttarakhand, when fine was levied on it for being overloaded. Secondly, the statement made by the driver of the aforesaid truck also, in our view, cannot be overlooked. It is not the case of the respondent at any stage, that the driver of the truck, bearing Registration No. HR-38E-4721, was ever forced or coerced in making a statement to the authorities under the Uttar Pradesh Trade Tax Act, 1948. The aforesaid two factual aspects, in our view, lead to the undisputable conclusion, that the truck, bearing Registration No. HR-38E-4721, was impounded, while it was traveling over the territory of the State of Uttarakhand. In so far as the observations recorded by the Commercial Tax Tribunal, Uttarakhand (which have been extracted hereinabove) are concerned, we are satisfied that the same are merely conjectural in nature. Since conjectures/surmises cannot be the basis of recording a finding of fact, the findings recorded by the Appellate Authorities on the basis of the same must necessarily be ignored. 10. We shall now examine whether the respondent had violated the mandatory provisions of Section 28-A (2) of the Uttar Pradesh Trade Tax Act, 1948. In so far as the instant aspect is concerned, the driver of the truck under reference did not produce any document, nor did he produce Form 31 when the same was called for on 11.09.2003 by the Trade Tax Authorities. The Appellate Authorities have overlooked the non- production of Form 31 on 11.09.2003 by asserting, that the sale made on 17.09.2003 was based on Form 31 presented by M/s Amrit Varsha Udhyog Ltd., Jashodharpur. Form 31 presented by M/s Amrit Varsha Udhyog Ltd., Jashodharpur for the purchase/sale transaction on a date 8 subsequent to 11.09.2003, cannot result in validating the unauthorized transportation of the goods on 11.09.2003. It is the admitted case between the learned counsel for the rival parties, that Form 31, which was subsequently presented by M/s Amrit Varsha Udhyog Ltd., Jashodharpur and accepted by the Trade Tax Authorities, was of a date subsequent to 11.09.2003. Form 31 which was referred to by the Appellate Authorities, was not in existence on the date of the occurrence relevant in the present case, i.e. 11.09.2003, when the goods being transported by the respondent were found in the territory of the State of Uttarakhand. In the aforesaid view of the matter, we are satisfied that the respondent had clearly violated the mandatory provisions of Section 28-A (2) of the Uttar Pradesh Trade Tax Act, 1948. 11. For the reasons recorded hereinabove, we hereby set aside the two appellate orders dated 26.06.2007 and 19.12.2007 and affirm the order of penalty dated 22.10.2003. 12. The instant revision petition is accordingly allowed. (Sudhanshu Dhulia, J.) (J.S. Khehar, C. J.) 10.06.2010 10.06.2010 Amit