Sarva Shri Rama Dairy Products Limited vs Commissioner, Commercial Tax

Barin Ghosh, C.J.—On March 10, 2010, the Tribunal passed the judgment in respect of a matter relevant to assessment year 2002-03, which judgment is under revision before us. There has been 23 days delay in preferring the revision. Accordingly, an application for condonation of delay has been, filed. To that, a counter-affidavit has been filed. We have considered the averments made in the application for condonation of delay and also the averments, made in the counter-affidavit filed thereto and, being satisfied with the reasons for the delay in preferring the revision, we allow the application. Heard on merits.

The facts to which there appears to be no dispute are that the revisionist manufactures and sells desi ghee and other milk products. Prior to December 21, 2002, the revisionist used to confine its selling activities within the State of Uttar Pradesh, as it remained after creation of the State of Uttarakhand by and under the provisions of the Uttar Pradesh Reorganisation Act, 2000. Prior to December 21, 2002, the revisionist established an establishment in the State of Uttarakhand for the purpose of selling desi ghee and other milk products produced by it in the State of Uttar Pradesh, in the State of Uttarakhand. All necessary licences, permissions, registration, etc., in that regard, were obtained by it prior to December 21, 2002. On December 21, 2002, a truck entered the State of Uttarakhand from the State of Uttar Pradesh containing desi ghee and other milk products of the revisionist with a road challan and a blank form XXXI. The road challan suggested that the goods were being transferred from the establishment of the revisionist situate at Uttar Pradesh to the establishment of the revisionist situate in Uttarakhand. Form XXXI, which was then lying in blank, was issued by the Commercial Tax Department of Uttarakhand. Inasmuch as the said form was lying in blank, the goods were seized, whereupon, the same were permitted to be released upon deposit of security money and, later on, the security deposit was appropriated towards penalty, as was imposed.

At the time the incident took place, the U.P. Trade Tax Act, 1948 was holding the fort. Section 28A of the said Act mandated that goods imported by road must accompany declaration form duly verified by the consignor in the prescribed manner, together with such other documents as may be prescribed. The U.P. Trade Tax Act, 1948 talked about importation of goods in the State of Uttar Pradesh. After creation of the State of Uttarakhand, by reason of the provisions contained in the Uttar Pradesh Reorganisation Act, 2000, the provisions contained in the U.P. Trade Tax Act, 1948 continued to remain applicable to the State of Uttarakhand. Therefore, by a fiction of law, importation, as contemplated in section 28A of the U.P. Trade Tax Act, 1948, also included importation to the State of Uttarakhand even from the State of Uttar Pradesh. The statutory mandate that goods, thus imported, must accompany declaration form duly verified by the consignor, being a mandate of the statute, could not be avoided. Rule 83 of the U.P. Trade Tax Rules, 1948 further mandated that, in relation to matters dealt with herein i.e., stock transfer, the truck carrying goods imported must at least have also a challan. In the instant case, the goods imported by road accompanied a challan and a blank declaration form.

It is the contention of the revisionist that, by mistake, inadvertence or error, the declaration form was not filled-in or duly verified. It was contended that there was no intention not to carry, along with the goods imported, a declaration duly verified. It was contended that, in such circumstances, though, at the best, goods could be seized; but, there was no justification for imposing penalty.

There may be some substance that, by reason of mistake, inadvertence or error, the accompanying declaration form was not filled-in. But, it is impossible to state, with certainty, that, only because of mistake, inadvertence or error, the accompanying declaration form was not filled-in. In other words, there was nothing in the declaration, which would show that the same stood appropriated to the goods in question; and that the said declaration cannot be used for any other goods. That being the situation, it is also possible that the revisionist was taking a chance of taking the goods without appropriating the goods to the declaration form for using the declaration form for the next trip. In the circumstances, not only the seizure was valid, but imposition of penalty too was valid.

The learned counsel for the revisionist submitted that, during the relevant year, under rule 12 of the U.P. Trade Tax Rules, 1948, only two declaration forms were obtained by it and one of them was used during the concerned trip and the other during some other trip. The said contention of the revisionist is not supported by any clinching evidence on the basis whereof one can come to a conclusion that the subject-declaration was intended to be used only for the goods in question.

The learned counsel for the revisionist cited a judgment of the honourable Allahabad High Court rendered in the case of Jain Shudh Vanaspati Ltd. Vs. State of U.P. and Others, and drew our attention to the observations made by the court in paragraphs 16, 18, 19, 21 and 27 of the reported judgment. In paragraphs 16, 18, 19 and 21 of the said judgment, no observation has been made by the honourable Allahabad High Court, which is contrary to what we have held above. On the other hand, a reading of these paragraphs will make it amply clear that the requirement of declaration form, accompanying imported goods, is an unavoidable statutory mandate. The observation in paragraph 27 to the effect that the declaration form not being submitted at the first check-post while entering the State with the imported goods, has no connection with the matter dealt with by us. We, accordingly, dismiss the revision application.