1

BEFORE ADDL. COMMISSIONER Gr.-2(APPEAL)

COM.TAX SITAPUR
M/S JAIN ROAD CARRIER, BLOCK-II, O.H.C. COMPLEX
APPELLANT
JANPATH, UNIT-3, BHUBANESWAR-1 &
PRAMOD KUMAR JAIN S/O SRI CHANDRABHAN JAIN,
BARGARH,ORISSA
Vs.
Asst.COMMISSIONER(SACHAL DAL) COM. TAX
SITAPUR
RESPONDENT

Assessment Year -2014-15

Disputed Amount 6,00,000=00
Appeal U/S 55 of UP VAT Act against the order no165 passed
by Sri Ajai Rai, Asst. Commissioner (sachal dal) Com.Tax, Sitapur
on 09-01-15 under section 54(15) of UP VAT Act.
STATEMENT OF FACTS
1- That the appellant is a firm which carries on goods transport
business under registered partnership deed in the name of
Jain Road Carrier. Pramod Kumar Jain is one partner in this
firm .
2- That on 17-06-2014 the appellant engaged two trialer
trucks OR 08D-3893 and OR 04P-2551 for carrying 3 MS
plates each (total 6 in number and total approx. 500quintals
in weight) from Angul
to Hardwar and issued G R
(consignment notes) Nos. 7543 & 7544 respectively.
3- That the consignor was M/S Jindal Steel and Power Ltd.
Nishal, Angul Orissa with its Head office at Jindal Centre, 12
Bhikaji Cama Place, New Delhi ,a company of great

reputation, and the consignee was Bharat Heavy Electricals

Limited, Hardwar, a Govt. of India Undertaking.
4- That both the trucks with all required genuine papers
related to goods while passing through the route declared in
Transit Declaration Form (TDF) were intercepted on 07-072014 by Asst. Commissioner (Sachal Dal) Sitapur on the
ground, inter alia, that the date 05-07-2014 mentioned in
TDF, by which the trucks were expected to cross the State of
Uttar
Pradesh, had expired and presuming the goods
carried by the trucks were intended for import into the State
of U.P. .
5- That the goods of both the trucks were seized ex-parte by
two separate seizure orders dated 17-07-2014 passed under
section 50 of UPVAT Act. On applications against these
seizure orders Joint Commissioner (S.I.B.) Commercial Tax,
Sitapur, under section 48(7) of UPVAT Act, after partially
accepting the applications passed orders nos 219 & 218
dt.28-07-2014. In compliance of these orders the goods of
both the trucks were released on deposit of security of Rs.
6,00,000/-(Rs.1,80,000/- in cash and rest Rs.4,20,000/against Bank guarantee) for each .
6- That two orders nos.162 & 165 regarding the goods carried
by vehicle no. OR-8D/3893 were passed on 09-01-2015. One,
under section 54(15) of UPVAT Act and the other does not
mention the section or the Act under which it has been
passed. The second order simply mentions susangat
dhara pravesh kar ke antargat. However, this appeal
is being preferred against the order no. 165 passed under
section 54(15) of UPVAT ACT on 09-01-2015.
7- That the order in question was served on the appellant on
03-02-2015 and the appeal is time.
8- That the appellant has deposited Rs.1000/- as appeal fees,
T.C. whereof being attached herewith.
Imposed
penalty
6,00,000=00
Security deposited

6,00,000=00
penalty

Disputed
6,00,000=00

GROUNDS OF APPEAL
Aggrieved by the penalty order no.165 dt. 09-01-2015
passed U/S 54(15) of UPVAT Act the appeal is preferred,
inter-alia, on the following grounds:
1- That the learned Asst. Commissioner (Sachal Dal) Sitapur
( hereinafter to be referred as A.C. M.S.) has erred in law as
well as in facts in not accepting the reply to show cause
notice presented and in ignoring the details regarding the
transaction already available with the truck and made
available to him on his queries at later on stages.
Firstly,
for proper appreciation,
the facts of the case are being mentioned as follows :
> Truck no. OR-08/3893 is a multi-axle trailer/ heavy goods
vehicle having National Transport Permit. It moves very
slow, that too, only on the road which has the 50 tons
bearing capacity and adequate space
for running and
turning. For this reason only suitable High-Ways are opted.
Loaded with 3 steel plates weighing approximately 250
quintals this vehicle started from Angul (Orissa) on 17-062014 with G.R.no.7543 and all other papers relating to goods
and vehicle. copy of GR no.7543 is being enclosed as
annexure no 1.
> It crossed Jamsola, Orissa (Odisha) Check-gate on 21-06-2014(
vide
vehicle
check
report
-cum-money
receipt
no.0110837dt.21-06-14 copy whereof is being enclosed as
annexure no 2.
> Through Jharkhand the vehicle reached the exit point of Bihar
on 02-07-14. Copies of the receipts issued by the Transport
Departments of these States are being enclosed as
annexures nos. 3 & 4 respectively.
> The driver of the vehicle Sri Dharmendra Kumar got downloaded
Transit
Declaration
Form
TDF-1
no.
D
20140700029943 on 03-07-2014 at 18:50:00 for entry into
UP at Naubatpur mentioning therein the route through which
it had to pass .The date and time for exit of the vehicle

/goods mentioned in TDF-1 was 05-07-2014; 10:01:00 which

was even less than 48 hours and it was never possible for
any heavy vehicle to travel more than 700 kms. (i.e., from
Naubatpur to Bhaguwala) in the State of UP in such a short
span of time. Copy of TDF- 1 D20140700029943 is being
enclosed as annexure no. 5.
AC MS Sitapur erred in not considering the fact that
time span of approx. 40 hours given in TDF for any heavy
vehicle to pass through the State of UP by covering approx.
700 kms. from Naubatpur to Bhaguwala was inadequate and,
if any technical error, at all, that happened was due to
improper inadequate facility of downloading system of TDF
at entry point and unawareness of the driver about legal
complexities of transition system of U.P. which any illiterate
or less educated person can be expected of.
In such circumstances AC MS Sitapur ought to
considered the genuineness of the transaction and the
parties which AC MS was legally bound to do.
2That failure to cross the State within the stipulated time
and unawareness of the legal complexities of transition
system of U.P.(which any illiterate or less educated person
can be expected of ) made the driver panic and he without
any malafide
got the TDF-1 surrendered. Even after
surrender (utilization) of TDF the vehicle was proceeding
towards Hardwar and was intercepted en-route to Hardwar
at Sitapur on 07-07-2014 in day hours at 10.00 AM. Had
there been an intention to unload the goods in UP the TDF
would not have been utilized , rather, it would have been
surrendered after the goods were unloaded.
Honble Allahabad High Court in the case of M/s Prakash
Transport Corporation Vs. Commissioner Commercial Tax, UP
VSTI 2013(Vol. 18) B-998 has down the law considering the
competence of driver in these words:
One cannot expect a driver or cleaner of the
vehicle to be competent enough to download a Transit
Declaration Form, fill it correctly and produce it
before the Authority on demand. Generally, the driver
or the cleaner are not possessed of internet facility.
Even if a Cyber Cafe is available one is never sure of

its proper functioning enabling downloading of TDF

round the clock.
The vehicle took 14 days from Angul Orissa to
Naubatpur (entry point of UP) . After the release of goods by
AC MS Sitapur on 12-08-2014 it took 7 days from Sitapur to
Hardwar and reached BHEL Hardwar on 19-08-2014 which
is less than one fifth of the total journey from Angul to
Hardwar. It suggests that time given in TDF was too short
for a big vehicle to cross the State.
Ignoring all the facts mentioned hereinbefore and law
laid down by Honble High Court , AC MS Sitapur wrongly
concluded that the goods have not been taken out of the
State and passed an order under section 54(15)of UPVAT Act
for violation of section 52 of the Act, whereas , the seizure
of the goods was made under section 50 of the Act for illegal
import of goods into the State .
3- That in the first paragraph of the Order no. 219 dt. 28-072014 passed by Sri Ram Kuber, Joint Commissioner (SIB)
Commercial Tax Sitapur under section 48(7) has mentioned
that at the time of inspection the driver presented to AC MS
Sitapur the following papers relating to goods :
iTDF-1
no. D20140700029943
dt.
03-07-2014;
iiJharkhand TP no. 201497070421811
dt. 0207-2014;
iii- Order to order Form of Bihar no.1017020021420714
dt.2-7-14;
iv- K Bill
no. W-14121060931
;
vWeigh Bridge Jamsola Receipt no.3721
dt.2106-2014;
vi- Sellers Invoice-cum-Challan no. 0000002819 dt. 1706-2014;
vii- M/s BHELs (Purchasers) Form XVI(16) no.
4483926(for import);
viii- Sellers weighing slip no. 6110013462 dt. 17-062014;
ixG R no. 7543 dt. 17-06-2014.

Joint Commissioner (S.I.B.) Commercial Tax, Sitapur in the last

paragraph of this order has given his finding in following words:
vikreta firm M/s Jindal Steel & Power Ltd Angul,
Orissa tatha kreta firm M/s Bharat Heavy Electricals Ltd.
Haridwar(Uttarakhand) panjikrit hai. Is prakar kreta evam
vikreta dono vyapari bonafide genuine vyapri hai. Parivahan
kiye ja rahe maal mein koi truti nahi payi gai hai. parivahan
kiya ja raha maal general merchantile ki vastu nahi hai
yeh vishesh design ka maal hai.
Copy of the order dt. 28-07-2014 is being enclosed as
annexure -6.
AC MS Sitapur found absolutely no material either
from record or from any other source to presume that the
goods might be unloaded inside the State of U.P. and might
not be taken to other State, while the goods of distinguished
specification specified by the purchaser (BHEL)
were in
transit and the vehicle was on declared route . The seller
M/s Jindal Steel & Power Ltd., is a reputed group in steels and
the purchaser Bharat Heavy Electricals Ltd. Hardwar is a
Govt. of India Undertaking. The seller and purchaser are
reputed bonafide registered dealers in their respective
States of Orissa and Uttarakhand and their bona fides have
never been doubted.
Despite these fact and law laid down by Honble
Supreme Court & Allahabad High Court on the subject of
transition of goods through State in many cases, AC MS
Sitapur passed the order U/S 54(15) of UPVAT Act on flimsy
basis that the expiration of exit time 05-07-2014 10:01:00
mentioned in TDF has made TDF unusable .
4That AC MS Sitapur in his order under challenge mentioned
only those evidences which could not be produced with reply
to show cause notice and ignored other evidences which
proves the movement of goods to Uttarakhand and its
delivery to M/s BHEL at Hardwar. Copies of receipt of Zila
Panchayat Bijnore no.08/103dt.16-08-2014; receipt of toll
PWD Roorki no.12759 dt. 17-08-2014 ; receipt of Transport
Dept. Govt. of U.K. no 601610 dt. 17-08-2014 and Trip Sheet
in Form-XVIII(A) For transport of goods into Uttarakhand are
being enclosed herewith as annexure nos. 7,8, 9 & 10 .

Delivery of goods to STORE KEEPER,BHEL HEEP, HARDWAR

is evident on GR no 7543 copy whereof is annexure no 1 .
5That AC MS Sitapur on one hand deduced that expiration of
time, i.e.,05-07-14 fixed for exit of goods from the State in
TDF before inspection of goods on 07-07-14 itself proves an
effort of illegal import and seized the goods under section 50
of UPVAT Act but on the other hand imposed penalty under
section 54(15) for violation of provisions of section 52 of
UPVAT Act. Last para of the penalty order speaks
---spasht hai ki ukt maal ka parivahan praant baahar
nahi kiya gaya hai. Tatkram mein jamaa jamanat rashi ko
arth dand mein parivartit kiya jata hai.
According to section 52 When a vehicle carrying
taxable goods passes through the State, the driver or person
in charge of such vehicle shall carry such documents as may
be prescribed failing which it shall be presumed that the
goods are meant for sale within the State by the owner or
person in charge of the vehicle.
Rule 58 of UPVAT Rules repeats the provisions of
Section 52 and lays down (prescribes) that such goods
while passing through the State
are supposed to be
accompanied by the documents as may be determined by
general or special order issued by the Commissioner from
time to time failing which a presumption shall be drawn that
the goods are meant for sale within the State.
.
The Commissioner, under Rule 58, has determined
procedures for downloading of TDF at the entry point from
the website of Commercial Tax Department which has to
accompany the goods in transit through the State giving exit
point and the route through which it would pass .
Undoubtedly, if TDF is not in accordance with the
parameters (even though impracticable) determined by the
Commissioner, a presumption to the effect that the goods
are meant for sale in the State of UP shall have to be drawn.
But such a presumption is always rebuttable. It simply shifts
the burden on the person carrying the goods through the
State to prove that the goods are not meant for sale within
the State. If better, stronger and conclusive evidence is
available or produced to prove that the goods are not meant

for sale in the State, such drawn

presumption stands
rebutted.
Section 54(1) 15 prescribes punishment for persons who
violate the provisions of Section 52 and Rule 58. Sub-clause
(i) of clause 15 of sub-section (1) of Section 54 of UPVAT Act
applies to the appellants case.
According to section
54(1)15(i) :
Where the driver or person in charge of the
vehicle, as the case may be, fails to carry documents
referred in section 52 (i.e., TDF) AND ALSO fails to prove
that goods carried in his vehicle are meant for delivery to
dealers or persons outside the State, shall pay by way of
penalty a sum equal to 40% of the value of goods.
It is unambiguously clear that for imposing penalty
under section 54(1)15 two facts should inextricably co-exist.
First relates to TDF. Second part places an onus on the
carrier to prove that the goods are meant delivery outside
the State. Improper or absence of TDF alone does not
empower the authority to impose penalty U/S 54(1)15
unless the carrier ALSO fails to prove that the goods are
meant for delivery outside the State.
Joint Commissioner (S.I.B.) Sitapur in his order
no.219 dt.28-07-2014 has already accepted genuineness and
bonafides of the seller and purchaser.He has mentioned that
no error have been found in the goods in transit. He has
also mentioned that the goods in transit are not general
merchandise goods, these are goods of special design.
While passing the order no. 165 dt. 09-01-2015
AC MS Sitapur did not consider even the finding of his
superior officer and held that the goods have not been
taken out of the State and illegally imposed penalty of RS.
6,00,000/-, whereas, because of specific design of the
goods, the goods could not otherwise be used except by
BHEL Hardwar and whereas, the goods which had its
destination at Hardwar, have been received by BHEL
Hardwar and whereas, the department could not belie any of
the papers accompanying the goods nor could bring any
evidence showing the remotest nexus of transaction with the
State of UP.

.
PRAYER
It is most respectfully prayed to this Honble Court to quash the
penalty order no.165 dated 09-01-2015, direct AC MS Sitapur to
fefund the security amount deposited by the appellant and award
any other relief which Honble Court deems fit to be awarded.
Sitapur
Appellant

-03-2015

VERIFICATION
I, Amit Agarawal, Advocate, on behalf of the appellant do hereby
declare that the contents of this memorandum are true to the
best of my knowledge and belief.
I, Amit Agarawal , Advocate, on behalf of the appellant do hereby
declare that the appeal is being filed for the first time and it has
not been filed before, signed and verified on
day of
March,2015, at Sitapur.
Lucknow 0 -03-2015

Appellant