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CASE NO.: Appeal (civil)  1603 of 2008

PETITIONER: Commissioner of Trade Tax, U.P.

RESPONDENT: M/s. J.U. Pesticides & Chemical P. Ltd

DATE OF JUDGMENT: 26/02/2007

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T

CIVIL APPEAL No. 1603 OF 2008 (Arising out of SLP (C) No. 897 of 2007)

Dr. ARIJIT PASAYAT, J

1.      Leave granted.

2.      Challenge in this appeal is to the judgment and order  dated 10.10.2006 passed by a learned Single Judge of the  Allahabad High Court in Trade Tax Revision No. 694 of 2006.   By the impugned order the learned Single Judge allowed the  Revision Petition filed under Section 11 of the Uttar Pradesh  Trade Tax Act, 1948 (in short the ’Act’) and directed release of  certain goods which were seized without security and  Rs.20,000/- was imposed as costs.

3.      The factual background in a nutshell is as follows:

The Check Post Officer posted at the Entry Check Post  Tamkuhiraj, District Deoria, in the State of Uttar Pradesh  issued transit Pass No.1006 dated 13.6.2005 in respect of the  goods carried in Truck No. HR-55A-4687.  The same was  presented before the Check Post Officer, Exit Check Post,  Transport Nagar, Ghaziabad on 15.6.2005.  As per Transit  Pass, 99 drums of Agro Chemicals valued at Rs.59,87,142.85  were recorded.  These goods were shown to have been  transported from Kapru in Assam to Bhatinda in the State of  Punjab.  A physical verification of the goods loaded in the  truck was carried out by the Check Post Officer posted at the  Exit Check Post and it was found that the goods relatable to  the 99 drums of Agro Chemicals were different from those  covered by the Transit Pass No. 1006.  The officer posted at  the check post issued show cause notice No. 553 dated  15.6.2005.  According to the officer, on a perusal of the goods  in question it was clearly established that the goods for which  Trip Sheet No. 1006 dated 13.6.2005 was issued have been  unloaded within the State of Uttar Pradesh and in its place  different goods have been loaded within the State of Uttar  Pradesh and such goods were being transported to a place  outside the State of Uttar Pradesh.  It was therefore concluded  that there was a sale which is taxable under the Central Sales  Tax Act, 1956 (in short the ’Central Tax").  But under the garb  of the said Trip Sheet No. 1006 dated 13.6.2005 different  goods were being carried. Goods loaded in the truck were

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analysed in the Shri Ram Institute of Industrial Research  Delhi. On receipt of the Analysis Report, part of the goods  weighing 375 kg. and valued at Rs.37,50,000/- were seized on  31.12.2005 and security to the extent of 40% of the value of  the seized goods i.e. Rs.15 lakhs was demanded for the release  of the goods as seized  by the Check Post Officer. The dealer  was directed to disclose the identity of the remaining goods  which were detained.   There was no response to the query.   

4.      Being aggrieved by the aforesaid order dated 31.12.2005,  the respondent filed an application in terms of Section 13A(6)  of the Act for release of the goods without payment of security  before Deputy Commissioner (Check Post) Trade Tax, Mohan  Nagar, Ghaziabad. The said Authority by order dated  28.1.2006 rejected the application and affirmed the Seizure  Order as well as the demand of security for release of goods.  Order passed under Section 13A(6) by the Deputy  Commissioner was challenged before the Tribunal, Trade Tax,  Ghaziabad, Bench II (in short ’Tribunal’). Stand of the  respondent before the Tribunal was the Transit Pass has been  issued from the Entry    Check Post on 13.6.2005 when the  truck arrived at the Exit Check Post on 15.6.2005, after  travelling the distance of about 700 k.m. and it was not  possible during such short period for the truck driver to  unload and sell the goods originally loaded in the truck at the  time of entering the State through the Entry Check Post and  thereafter to load other goods in the same vehicle from a place  within the State of Uttar Pradesh before crossing the State  through the Exit  Check Post.  Tribunal rejected the  contention on the ground that the plea about possibility of  unloading and selling the goods was not acceptable.  The  Tribunal observed that merely because the said vehicle had  covered a distance of 700 k.m. it could not be ruled out that  as a part of the pre-planned strategy, the original goods could  be unloaded and in its place different goods could be loaded  within a short  period of one or two hours.  The Tribunal  observed that whether the goods loaded in the vehicles were  those very goods which were available in the vehicle at the  time of entry of the vehicle at the Check Post as a fact which  could be ascertained only after the through examination of the  documents presented at the Exit Check Post as well as the  physical verification of the goods loaded in the vehicle at the  time of inspection at the Exit Check Post.

5.      Tribunal noticed that the driver or the person in charge  of the goods loaded in the vehicles is required to stop the  vehicle at the Exit Check Post, surrender one copy of the Trip  Sheet and allowed the officer posted at Exit Check Post to  ensure that the goods loaded in the vehicle are those very  goods which are covered by the Trip Sheet and for the said  purposes, the relevant account Books connected with the  goods and its transportation shall, if necessary, are required to  be produced for examination by the officer.  Reference was  made to Rule 87(3) of the Uttar Pradesh Trade Tax Rules, 1948  (in short the ’Rules’) to observe that the officer posted at the  Check Post is not only supposed to count the number of  drums as disclosed in the Trip Sheet, but is supposed to  satisfy himself after examining the relevant documents,  consignment and the goods that the goods being transported  outside the State of U.P. are those very goods which were  loaded in the truck at the time of its entry at the Entry Check  Post and as mentioned in the Trip Sheet.

6.      A categorical finding was recorded that on a physical  verification although 99 drums of agro Chemicals as per goods

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receipt were found in the vehicle, but on comparing these  goods with the goods mentioned in the Invoice No. 33 dated  3.6.2005 and Delivery Note No. 034 dated 3.6.2005, different  goods were found in the vehicle.  The description of the goods  as mentioned in the Trip Sheets were found not to be  matching with those goods because of the following factors:

(i)     The goods receipt was originally made for dispatch  of 126 drums as is shown in the invoice No. 33 dated  03.06.2005 comprising of Immida Cloprid contained in  60 cases of 50 liters each and Acetamiprid contained in  66 cases of 50 kg each. The total of these drums thus  comes to 126 as shown in the goods receipt. (ii)    Not only this, the weight of these 126 drums also  comes to 6300 kg as was originally shown in the goods  receipt.  (iii) Out of these 126 drums only 99 drums are said to  have been actually dispatched subsequently. The weight  of the chemicals @ 50 kg per case in these 99 cases  comes to 4950 kg and if the weight of the containers  itself is added to it, the weight of these 99 drums comes  to 5100 kg as has been subsequently mentioned in the  goods receipt itself.  (iv) There is a reference of goods receipt No. 6401589 on  the Delivery Note No. 034 dated 03.06.2005 itself and as  such the said delivery note cannot be held to be related  with some other goods receipt. (v) The said goods receipt No. 6401589is clearly  mentioned in the Trip Sheet No. 1006 dated 13.06.2005. (vi) In the column of Private Mark in the goods receipt No.  6401589, there is a reference of 034 which is the number  of Delivery Note itself. (vii) There is, it is true, no reference of invoice number  and date on the Trip Sheet no. 1006 dated 13.6.2005,  but the simple reason for it is that there is no column  provided in the Trip Sheet for this purpose.

7.      The Tribunal also noted that transportation of 126 drums  against Goods Receipt No. 6401589 has been shown in Trip  Sheet was obtained in respect of 99 drums from Entry Check  Post Tamkuhiraj and the same refers to Delivery Note no.034  dated 3.6.2005 and on a physical verification, the goods which  were found were different from those covered by the Delivery  Note. It was also noted that the respondents were not prepared  to disclose the identity of goods in spite of grant of  opportunity.

8.      Respondent challenged the findings of the Tribunal in the  Revision filed before the High Court, which as noted above,  allowed it.  

9.      The basic stand of the appellant is that the scope of  interference in a proceeding under the Act is very limited; it  can only interfere in the question of law and should not  normally interfere with the concurrent findings of fact.

10.     There is no appearance on behalf of the respondent in  spite of service of notice.   

11.     The factual findings recorded by the High Court have  been noted above. Additionally, the High Court does not  appear to have appreciated that in the goods Receipt no.  6401589 dated 9.6.2005 in the Column of "Private Mark", the  Entry is 034 and in the Column of "Value", the entry is  Rs.76,20,000/-.  The figures "034" and "Rs.76,20,000" are the

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Delivery Note No.34 and the value of the goods is  Rs.76,20,000/-, as mentioned in the Delivery Note.  

12.     Above being the factual position the High Court ought  not to have interfered with the orders of the departmental  authorities and the Tribunal, that too on the question of  appreciation of the factual aspects. The High Court has not  analyzed as to how the conclusions of the Tribunal as noted  above suffer from any infirmity.  If fact finding authority comes  to certain conclusions honestly and bonafide the mere fact  that  Court may have a different perspective of that question,   cannot be a ground to interfere with the finding even though  another view may be possible. Considering the limited  jurisdiction exercisable under Section 11 of the Act, such a  course is not available.  As noted by this Court in  Commissioner of Sales Tax, U.P. v. Kumaon Tractors & Motors  (2002 (9) SCC 379), Section 11 of the Act confers limited  jurisdiction to interfere with the order of the Tribunal only on  the question of law, which is required to be precisely stated  and formulated.  In the instant case, even that has not been  done.      

13.     The High Court’s order, which is clearly indefensible, is  set aside.

14.     The appeal is allowed without any order as to costs.