# Radhika Oiul Industries Revisionist v. Commissioner Trade Tax, U.P. Lucknow

- **Citation:** (2016) 7 ILRA 561
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-07-29
- **Bench:** Yashwant Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/radhika-oiul-industries-revisionist-v-commissioner-trade-tax-u-p-lucknow-44137
- **Pages:** 7

## Headnote

U.P. Trade Tax Act, 1948 - Section 28A - Section 28B - Levy of penalty - Section 15A(1)(o) - Import of
goods into the State - Goods merely transiting the State of U.P. - Authorization for transit of goods - First
check post or barrier after his entry into the State - Statutory presumption - Failure to obtain the requisite
form - Vehicle was apprehended before the first check post - Provisions of Section 28A did not apply - Levy
of penalty clearly unsustainable and unjustified - Provisions of Section 28B were not infringed - Revision shall
stand allowed - Orders are hereby set aside.

The challenge in the present proceedings is to a levy of penalty for alleged contravention of the provisions of
Section 28A of the U.P. Trade Tax Act, 1948 [ 1 1948 Act] . A penalty has come to be imposed upon the
revisionist in terms of the provisions of Section 15A(1)(o) of the 1948 Act. The case of the revisionist was that
a tanker vehicle commenced its journey in the State of Rajasthan and was bound to the premises of a dealer
namely Rama Phosphate Ltd. at Indore in the State of Madhya Pradesh. This vehicle is stated to have been
intercepted near the Saiyan crossing just prior to the check post established by the Trade Tax authorities in
the district of Agra. Since the goods were not accompanied with the documents required in terms of the
provisions of Section 28A, they were detained. A notice to show cause was issued on 5 February 2000 calling
upon the person in charge of the vehicle to establish cause as to why penalty be not imposed. A reply is
stated to have been submitted on 7 February 2000 which, however, did not in the opinion of the authorized
person commend acceptance. Accordingly a seizure order was passed and a subsequent penalty order came
to be made on 30 March 2000. The revisionist took out a first appeal but the same did not meet any success.
Constrained by the order of dismissal of its first appeal, it approached the Tribunal, which has while upholding
the levy of penalty reduced the quantum thereof to Rs. 48,000/ being 12% of the value of the goods. It is
against the said order that the instant revision has come to be instituted.(Paras 2)

Held: (Paras 6-7)

## Text

7 All. Radhika Oiul Industries Vs Commissioner Trade Tax, U.P. Lucknow
561
provided found trustworthy. Facts of this case are rather strange. Of course, it is not necessary to
provide supportive evidence in every case of sexual assault but in the instant case, there are several
glaring discrepancies. A young married girl disappeared with a family friend for around two
months and yet no report of disappearance was lodged by parents. There is nothing on record to
even demonstrate that accused Pramod was ever questioned by the parents of the prosecutrix.
Surprisingly even the husband of prosecutrix at whose request she had been dispatched with
appellant Pramod did not inquire about her whereabouts. No report was lodged even by him. The
discrepancies regarding timing of report, medical examination and other relevant facts have not
been explained. Parents of prosecutrix at least could have supported the initial part of story of
prosecution yet parents and husband of prosecutrix neither reported the matter to the Police nor
appeared before the trial court to support her version. Even investigation has been performed in
perfunctory manner. The testimony of prosecutrix is not reliable at all. The story given by her and
story disclosed in G.D. No. 46 of 13.12.1980 Kotwali Fatehpur (Ex Ka-1) recorded at 9:10pm (Ex
Ka-9) are diametrically opposite to each other. Thus, we have no hesitation in holding that
appellants are entitled to the benefit of doubt as the prosecution has failed to prove its case beyond
reasonable doubts. Hence, the conviction recorded by the trial court against the appellants as well
as sentence awarded to them can not be sustained.

27. In the result, both appeals are allowed. The judgment and order dated 7.7.1983 passed
by then 7th Additional Sessions Judge, Fatehpur in Sessions Trial No. 513 of 1981 (State versus
Pramod and others) arising out of Case crime no. 250 of 1980, Police Station Thariyaon. District
Fatehpur is set aside. Appellants be set at liberty, if in jail and not wanted in any other case. Their
bail bonds are cancelled and sureties discharged.

28. Let a copy of the judgment be sent to trial court for compliance through Sessions
Judge, Fatehpur within ten days. Concerned court shall report compliance within one month
thereafter.
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REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.07.2016

BEFORE

THE HON'BLE YASHWANT VARMA, J.

Sales/Trade Tax Revision No.- 1580 Of 2005

Radhika Oiul Industries ...Revisionist
Versus
Commissioner Trade Tax, U.P. Lucknow ...Respondent

Counsel for the Revisionist:
Kunwar Saksena
562 INDIAN LAW REPORTS ALLAHABAD SERIES

Counsel for the Respondent:
C.S.C.

U.P. Trade Tax Act, 1948 - Section 28A - Section 28B - Levy of penalty - Section 15A(1)(o) - Import of
goods into the State - Goods merely transiting the State of U.P. - Authorization for transit of goods - First
check post or barrier after his entry into the State - Statutory presumption - Failure to obtain the requisite
form - Vehicle was apprehended before the first check post - Provisions of Section 28A did not apply - Levy
of penalty clearly unsustainable and unjustified - Provisions of Section 28B were not infringed - Revision shall
stand allowed - Orders are hereby set aside.

The challenge in the present proceedings is to a levy of penalty for alleged contravention of the provisions of
Section 28A of the U.P. Trade Tax Act, 1948 [ 1 1948 Act] . A penalty has come to be imposed upon the
revisionist in terms of the provisions of Section 15A(1)(o) of the 1948 Act. The case of the revisionist was that
a tanker vehicle commenced its journey in the State of Rajasthan and was bound to the premises of a dealer
namely Rama Phosphate Ltd. at Indore in the State of Madhya Pradesh. This vehicle is stated to have been
intercepted near the Saiyan crossing just prior to the check post established by the Trade Tax authorities in
the district of Agra. Since the goods were not accompanied with the documents required in terms of the
provisions of Section 28A, they were detained. A notice to show cause was issued on 5 February 2000 calling
upon the person in charge of the vehicle to establish cause as to why penalty be not imposed. A reply is
stated to have been submitted on 7 February 2000 which, however, did not in the opinion of the authorized
person commend acceptance. Accordingly a seizure order was passed and a subsequent penalty order came
to be made on 30 March 2000. The revisionist took out a first appeal but the same did not meet any success.
Constrained by the order of dismissal of its first appeal, it approached the Tribunal, which has while upholding
the levy of penalty reduced the quantum thereof to Rs. 48,000/ being 12% of the value of the goods. It is
against the said order that the instant revision has come to be instituted.(Paras 2)

Held: (Paras 6-7)

1. While it is true that the proceedings for levy of penalty were instituted with reference to clause (o) of
Section 15A (1) alone, the case of the revisionist may be tested even on the pedestal of Section 28B. It
becomes pertinent to note that for violation of Section 28B or its provisions a like penalty is provisioned for in
clause (q) of Section 15A(1). The vehicle in question commenced its journey in the State of Rajasthan and is
stated to have been apprehended just before the check post at Saiyan. The submission of the learned counsel
for the revisionist that Saiyan was in fact the first check post which the revisionist would cross in its passage
of transit is not disputed. Now it needs to be borne in mind that section 28B lays down the requirement of
obtaining what may be called a transit pass. This is a document which the person in charge of the vehicle
must obtain at the time of entry into the State and surrender upon exiting the State. The time at which this
transit pass is to be obtained and surrendered is prescribed to be "the first checkpost or barrier after his entry
into the State and deliver it to the officerincharge of the last checkpost or barrier before his exit from the
State". The statutory presumption of a sale having occurred within the State or a violation of section 28B
would come about only upon the failure on the part of the person to obtain the requisite form and declaration
upon crossing the first check post or barrier which fell after his entry into the State. Here, the vehicle was
apprehended before the first check post which fell upon entry into the State. It was not the case of the
Department that the vehicle of the revisionist had crossed the Saiyan check post and was exiting the State of
U.P. at which stage the goods were apprehended. The provisions of section 28B were therefore not infringed.
Consequently, the question of a levy of penalty in terms of section 15A (1)(q) would also not arise. The Court
therefore finds that the orders of the authorized officer, first appellate authority as well as the Tribunal are
clearly unsustainable and arbitrary.
7 All. Radhika Oiul Industries Vs Commissioner Trade Tax, U.P. Lucknow
563
2. For the aforesaid reasons, this revision shall stand allowed. The orders dated 7 February 2000 and 30 May
2000 passed by authorized officer, 8 December 2000 passed by the first appellate authority as well as the
order dated 3 March 2005 passed by the Tribunal are hereby set aside.

Case Law discussed:

(Delivered by Hon'ble Yashwant Varma, J.)

1. Heard Sri M.M. Rai, the learned counsel for the revisionist and the learned Standing
Counsel.

2. The challenge in the present proceedings is to a levy of penalty for alleged contravention
of the provisions of Section 28A of the U.P. Trade Tax Act, 1948 [ 1 1948 Act] . A penalty has
come to be imposed upon the revisionist in terms of the provisions of Section 15A(1)(o) of the
1948 Act. The case of the revisionist was that a tanker vehicle commenced its journey in the State
of Rajasthan and was bound to the premises of a dealer namely Rama Phosphate Ltd. at Indore in
the State of Madhya Pradesh. This vehicle is stated to have been intercepted near the Saiyan
crossing just prior to the check post established by the Trade Tax authorities in the district of Agra.
Since the goods were not accompanied with the documents required in terms of the provisions of
Section 28A, they were detained. A notice to show cause was issued on 5 February 2000 calling
upon the person in charge of the vehicle to establish cause as to why penalty be not imposed. A
reply is stated to have been submitted on 7 February 2000 which, however, did not in the opinion
of the authorized person commend acceptance. Accordingly a seizure order was passed and a
subsequent penalty order came to be made on 30 March 2000. The revisionist took out a first
appeal but the same did not meet any success. Constrained by the order of dismissal of its first
appeal, it approached the Tribunal, which has while upholding the levy of penalty reduced the
quantum thereof to Rs. 48,000/ being 12% of the value of the goods. It is against the said order that
the instant revision has come to be instituted.

3. In order to appreciate the submissions advanced by Sri Rai, it would be first apposite to
refer to the provisions of Section 28A and 28B of the 1948 Act, which read as follows:

"28A. 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 foodgrains, cereals, pulses, soyabean, and all
products thereof, and all raw materials including resin, rosin and oilseeds used for extracting oils of
any kind; or
(ii) rupees fifty, in the case of other goods; or
564 INDIAN LAW REPORTS ALLAHABAD SERIES

(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 inthe prescribed form
in duplicate duly filled in and signed by him and the driver or any other personincharge of any
vehicle carrying any such goods shall carry with him the copies of such declaration duly verified by
the consignor in the prescribed manner together with such other documents as may be prescribed,
and shall deliver one copy of such declaration,

(i) where such goods are brought by a road on which a checkpost or barrier is
established under Section 28, to the officerincharge of such checkpost or barrier before crossing the
checkpost or barrier, and

(ii) where such goods are brought by a road on which nosuch checkpost or barrier
is established, to the officerincharge of the nearest checkpost or barrier established under the said
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 officerincharge of the checkpost or barrier shall grant areceipt for the copy
of declaration delivered to him and it shall not be necessary for the driver or the personincharge of
the vehicle to deliver any copy of the declaration at any other checkpost or barrier that he may
cross, if he shows such receipt to the officerincharge of such other checkpost or barrier;

(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 hefurnishes or causes to
be furnished to such officer, as may be authorised in this behalf, by the State Government, a
7 All. Radhika Oiul Industries Vs Commissioner Trade Tax, U.P. Lucknow
565
declaration in the prescribed form in duplicate duly filled in and signed by him for endorsement by
such officer ; and

(b) after taking delivery, carry the goods away or cause the goods tobe carried
away from the railway station, steamer or boat, station, airport or postoffice, as the case may be,
unless a copy of the declaration duly endorsed by such officer is carried with the goods.

(4) Where such goods are brought into the State as personalluggage, 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 subsection (3) by the next working day.

(4A) Where any person intends to bring, import or otherwise receive into the State
from any place without the State any goods referred to in subsection (1) otherwise than in
connection with business and obtains the prescribed form of certificate, the provisions of subsections (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 personincharge of any vehicle carrying anygoods referred to
in the preceding subsection shall stop the vehicle at every such checkpost or barrier or, when so
required by an officer authorised under subsection (2) of Section 13, at any other place, and keep it
stationary for so long as may be considered necessary by the officerincharge of the checkpost or
barrier or the officer authorised under subsection (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 in the preceding subsection, and shall, if so required, give his name and address and the names and addresses of the
owner of the vehicle and of the consignor and the consignee of the goods.

(6).Where the officer making the search or inspection under thissection 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 subsections 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 subsections (2), (6) and (8) of Section 13Ashall mutatis
mutandis apply to such detention, as they apply to seizure under that section.

(8) Nothing contained in this section shall be construed to imposeany 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.
566 INDIAN LAW REPORTS ALLAHABAD SERIES

28-B. Transit of goods by road through the State and issue of authorisation
for transit of goods.When a vehicle coming from any place outside the State and bound for any
other place outside the State, and carrying goods referred to in subsection (1) of Section 28A,
passes through the State, the driver or other personincharge of such vehicle shall obtain in the
prescribed manner an authorisation for transit of goods from the officerincharge of the first checkpost or barrier after his entry into the State and deliver it to the officerincharge of the last checkpost
or barrier before his exit from the State, failing which it shall be presumed that the goods carried
thereby have been sold within the State by the owner or personincharge of the vehicle:

Provided that where the goods carried by such vehicle are, after their entry into the
State, transported outside the State by any other vehicle or conveyance, the onus of proving that
goods have actually moved out of the State shall be on the owner or personincharge of the vehicle.

Explanation.For the purpose of this section, the hirer of the vehicle shall also be
deemed to be the owner of the vehicle."

4. A perusal of Section 28A would establish that a person who intends to bring, import or
otherwise receive goods, "into the State" from any place outside the State of U.P. is liable to
obtain a declaration form as prescribed upon payment of the requisite fee. From the plain and
unambiguous language of Section 28A, it is clear that the obligation which is placed in terms of its
provision is upon a person who intends to bring import or otherwise receive goods into the State.
Section 28A obviously, therefore, cannot apply to goods, which are merely transiting the State of
U.P. on their journey onwards to another State.

5. The case of goods which enter the State of U.P. and transit the State onwards has in fact
been taken care of and requisite provisions in respect of such eventuality provisioned for in Section
28B. Here the obligation which is placed is that the person carrying goods is required to obtain an
authorization for transit of goods from the officer in charge of the first check post or barrier which
falls after his entry into the State and surrender the same before he exits the State at the last check
post failing which the provision raises a presumption that the goods have been sold within the
State. While clause (o) of Section 15A (1) deals with the levy of penalty in a case where goods
have been imported or transported in contravention of the provisions of Section 28A, clause (q)
provides for a levy of penalty in case of an infraction of Section 28B.

6. The Tribunal has in the opinion of this Court while undertaking a labored exercise to
uphold the levy of penalty clearly failed to bear in mind the fundamental facets of Sections 28A
and 28B. While various faults have been found with respect to the quality of the documentation
which was found to be accompanying the goods in question, the Tribunal has failed to bear in mind
the primary ingredients for applicability of Section 28A. It does not at any place in its judgment
record any reason to disbelieve the submission of the assessee that the goods were transiting the
Sate of U.P. and were bound for Indore in the State of M.P. Obviously, therefore, there was no
occasion for it being asserted or held that the goods in question were intended to be brought,
imported or otherwise received into the State of U.P. Since in view of the above the provisions of
7 All. Smt. Shilpi Srivastava Vs State Of U.P. & Anr.
567
section 28A did not apply, consequently the levy of penalty in terms of clause (o) of Section 15A
(1) was clearly unsustainable and unjustified.

7. While it is true that the proceedings for levy of penalty were instituted with reference to
clause (o) of Section 15A (1) alone, the case of the revisionist may be tested even on the pedestal of
Section 28B. It becomes pertinent to note that for violation of Section 28B or its provisions a like
penalty is provisioned for in clause (q) of Section 15A(1). The vehicle in question commenced its
journey in the State of Rajasthan and is stated to have been apprehended just before the check post
at Saiyan. The submission of the learned counsel for the revisionist that Saiyan was in fact the first
check post which the revisionist would cross in its passage of transit is not disputed. Now it needs
to be borne in mind that section 28B lays down the requirement of obtaining what may be called a
transit pass. This is a document which the person in charge of the vehicle must obtain at the time of
entry into the State and surrender upon exiting the State. The time at which this transit pass is to be
obtained and surrendered is prescribed to be "the first checkpost or barrier after his entry into the
State and deliver it to the officerincharge of the last checkpost or barrier before his exit from the
State". The statutory presumption of a sale having occurred within the State or a violation of
section 28B would come about only upon the failure on the part of the person to obtain the requisite
form and declaration upon crossing the first check post or barrier which fell after his entry into the
State. Here, the vehicle was apprehended before the first check post which fell upon entry into the
State. It was not the case of the Department that the vehicle of the revisionist had crossed the
Saiyan check post and was exiting the State of U.P. at which stage the goods were apprehended.
The provisions of section 28B were therefore not infringed. Consequently, the question of a levy of
penalty in terms of section 15A (1)(q) would also not arise. The Court therefore finds that the
orders of the authorized officer, first appellate authority as well as the Tribunal are clearly
unsustainable and arbitrary.

8. For the aforesaid reasons, this revision shall stand allowed. The orders dated 7 February
2000 and 30 May 2000 passed by authorized officer, 8 December 2000 passed by the first appellate
authority as well as the order dated 3 March 2005 passed by the Tribunal are hereby set aside.
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REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.07.2016

BEFORE

THE HON'BLE PRABHAT CHANDRA TRIPATHI, J.

Criminal Revision No.- 1909 Of 2012

Smt. Shilpi Srivastava ...Revisionist
Versus
State Of U.P. & Anr. ...Opposite parties

Counsel for the Revisionist: