R. B. MISRA, J. ( 1 ) IN these trade tax revisions the applicant/revisionist preferred Under Section 11 of U. P. Trade tax Act, 1948, (in short called the "act") against the order dated April 27, 2002 passed in second Appeal No. 55 of 2002 (2001-2002) and order dated April 27, 2002 passed in Second appeal No. 56 of 2002 (2001-2002) Under Section 13-A (6) of the Act. 1. Heard Sri Kunwar Saxena, learned counsel for the applicant/ revisionist and Sri B. K. Pandey, learned Standing Counsel for the respondent. ( 2 ) THE brief facts necessary for adjudication of the present revisions are that the applicant/revisionist is a registered dealer of U. P. Trade Tax Act as well as Central Sales Tax act and has imported nylon fishnet fabrics from outside the State but the consignment was detained and seized on October 31, 2001 by the Trade Tax Officer, Sahayata Kendra, Chaukhata, district Allahabad under purported exercise of powers Under Section 28-A of the Act on the ground that the aforesaid consignment was not accompanied with form XXXI. The applicant preferred representation under proviso to section 13-A (6) of the Act before Assistant commissioner, Pravartan, Trade Tax, Allahabad stating that nylon fishnet fabrics, being rayon fabrics, were exempt from payment of trade tax as "textiles" under Notification No. 303 dated february 1, 1989 issued Under Section 4 of the Act. The aforesaid representation was rejected by the Assistant Commissioner, Trade Tax, Allahabad, on January 7, 2002 (annexure-3) on the ground that nylon fishnet fabrics were not textiles and therefore liable of tax. The applicant/revisionist preferred second appeal Nos. 55 of 2002 and 56 of 2002 before the Trade tax Tribunal. The Tribunal in its order dated July 24, 2002 has partly allowed the appeal of the applicant/revisionist and has modified the order of trade tax officer as well as Assistant commissioner (Enforcement), Trade Tax, and has directed to deposit cash or bank guarantee equal to the tax involved and released the goods in favour of the applicant/revisionist. ( 3 ) LEARNED Tribunal in its order dated April 27, 2002 has observed as to whether the commodity being imported without form XXXI was taxable or exempt from tax. There was no dispute that the goods had been properly declared at the check-post and nothing had been suppressed. ( 3 ) LEARNED Tribunal in its order dated April 27, 2002 has observed as to whether the commodity being imported without form XXXI was taxable or exempt from tax. There was no dispute that the goods had been properly declared at the check-post and nothing had been suppressed. It was further stated that in view of the different orders passed earlier by the departmental authorities themselves, the applicant-assessee bona fidely believed that the aforesaid commodity was not liable to tax and it was for this reason only that the consignment did not accompany with form xxxi. The goods were being imported by a registered and genuine dealer. The Tribunal took the view that the aforesaid question as to whether it was liable to tax or not could be decided only at the time of assessment. ( 4 ) IT has been submitted on behalf of the applicant/revisionist that nylon fishnet fabric or nylon fabric was same as rayon fabric which being textile was exempted under Notification No. 303 dated February 1, 1989 and the High Court of Karnataka had already taken the view that nylon fabrics are same as rayon fabrics in the case of P. R. Chindak v. Assistant Commissioner of commercial Taxes reported in [1994] 93 STC 139. It has also been pointed on behalf of the applicant/revisionist that the Commissioner of Trade Tax had himself taken the view in the matter of Om Industries, Kanpur in exercise of his powers Under Section 35 of the Act that nylon fishnet fabrics, being textiles were exempt from tax. The copy of the aforesaid order dated june 5, 1993 of the Commissioner, Trade Tax, had also been filed before the Tribunal is (annexure-7 ). ( 5 ) IN the matter of Shri Soot Stores, Raja Darwaza, Varanasi, same goods had been earlier detained by Bharoli Check-Post on the ground that they were not accompanied with form XXXI. Subsequently, proceedings for penalty Under Section 15-A (1) (o) of the Act were taken up and penalty in a sum of Rs. 16,000 was imposed. But in view of the aforesaid order of the commissioner, Trade Tax and other departmental orders, the aforesaid penalty was set aside by the assessing authority himself Under Section 22 of the Act on the ground that nylon fishnet fabrics being covered by the term "textile" were exempt from tax. 16,000 was imposed. But in view of the aforesaid order of the commissioner, Trade Tax and other departmental orders, the aforesaid penalty was set aside by the assessing authority himself Under Section 22 of the Act on the ground that nylon fishnet fabrics being covered by the term "textile" were exempt from tax. It has been submitted on behalf of the applicant/ revisionist that the Commissioner, Trade Tax, Under Section 35 of the act, dated September 30, 2000, in the matter of Gaurav Traders, Gorakhpur reported in 33 str-Acts, notification and circulars section, page 9) wherein the Commissioner, Trade Tax had taken the view that HDPE fabrics were not included in the term "textiles" and were, therefore, liable to tax. It is submitted that in the facts of the present case, the aforesaid order and judgment of the Commissioner, Trade Tax was wholly inapplicable inasmuch as firstly the commodity under consideration in the case of Gaurav Traders, Gorakhpur was HDPE fabrics, whereas, in the present case, the commodity involved is nylon fishnet fabric or nylon fabric or rayon fabric. The two commodities were different and distinct. It is a different matter that in the matter of Gaurav traders, the assessee had mentioned at one place that according to him the term "hdpf, fabrics" also included "nylon fabrics, fishnet fabric or mosquito net fabric". It is important to point out that the judgment and order of the Commissioner, Trade Tax in the matter of Gaurav Traders was directly concerned with the term "hdpe fabrics" and not with the term "nylon fishnet fabrics". ( 6 ) IN these circumstances the following questions have been placed for consideration : " (1) whether, on the facts and in the circumstances of the case, the seizure of the goods, i. e. , nylon fishnet fabrics, was justified ? (2) whether, on the facts and in the circumstances of the case, the Tribunal was justified in directing the applicant-assessee to furnish security for obtaining the release of the goods even without recording a finding that seizure of the goods, in the facts and circumstances of the case, was justified ? (2) whether, on the facts and in the circumstances of the case, the Tribunal was justified in directing the applicant-assessee to furnish security for obtaining the release of the goods even without recording a finding that seizure of the goods, in the facts and circumstances of the case, was justified ? (3) whether, on the facts and in the circumstances of the case, the quantum and nature of security demanded by the Tribunal was justified ?" ( 7 ) NOW for convenience section 28-A (6) of the Act reads as follows : " (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 applied 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. " ( 8 ) IN 2002 UPTC 165 (Sri Mewa Lal and Sons, Gorakhpur v. Commissioner of Trade Tax) para 4 reads as below : "a plain reading of the aforesaid provisions of law shows that a finding has to be recorded by the authorities concerned that the goods were being transported in an attempt to evade assessment or payment of tax due or likely to be due under the Act. Unless such a finding is recorded no penalty can be imposed. In the instant case no one of the lower authorities has recorded any such finding. Therefore, the orders of imposing the penalty passed by the authorities below cannot be sustained. " ( 9 ) IN 2001 UPTC 770 (Moradabad Rubber Scrap, Moradabad v. Commissioner of Sales Tax) it was held that seizure and security demanded by the assessing authority was not found sustainable when finding recorded by the Tribunal was not very satisfactory and warranting seizure of goods. Therefore, the direction of the-Tribunal to the dealer to furnish personal bond was treated to be not sustainable. Therefore, the direction of the-Tribunal to the dealer to furnish personal bond was treated to be not sustainable. In para 2 of the judgment the Tribunal has held the grounds mentioned in the order of seizure made by the Sales Tax Officer and Assistant Commissioner (Enforcement) are not very much satisfactory and sufficient warranting the seizure of goods yet it directed the applicant to furnish a personal bond in lieu of cash security for the amount required under the seizure order. In para 5 of the judgment it was held "i find that the Tribunal had recorded a categorical finding of fact, which is based on appreciation of evidence and material on record that the seizure was not warranted. Thus, there was no question for directing the applicant to furnish a personal bond in lieu of the cash security and the same cannot be sustained and is hereby set aside". ( 10 ) IN 1996 UPTC 549 (Commissioner of Sales Tax, U. P. , Lucknow v. Shakti Cylinder Pvt. Ltd. , hyderabad) has held in paras 4 and 5 reads as below : "para 4 ; Learned Standing Counsel for the applicant contended that the Sales Tax Tribunal was not legally justified in taking the view that no penalty was exigible holding that there was no oblique motive or intention to evade the payment of tax on the part of the respondent-assessee. It is not in dispute that the goods seized were accompanied by all other papers and documents contemplated under Rule 83 (4) of the Rules framed under the Act except form XXXI. The documents which were found with the driver of the vehicle, were two invoices, two delivery challans, two Central Excise Gate Pass, G. R. of M/s. Archana Roadways and letter of Andhra bank, all dated December 24, 1986. In reply to show cause notice, the case taken up by the assessee was that there was no evil intention or an attempt to evade assessment or payment of tax due or likely to be due under the Act in omitting to obtaining form XXXI, required under the relevant rules read with section 28-A of the Act. The assessee pleaded that it was under a bona fide belief that the Gas Cylinders in dispute, were not the articles of trade involving purchase and sale. The assessee pleaded that it was under a bona fide belief that the Gas Cylinders in dispute, were not the articles of trade involving purchase and sale. The case taken up was that the respondent-assessee had only fabricated those Gas Cylinders on job-work getting imported iron sheets from Indian Oil Corporation and the Gas Cylinders were being carried to the Branch of Indian Oil Corporation, Mathura after their manufacture. The tribunal believed the case of the assessee and has recorded a categorical finding that the documents in possession of the driver of the vehicle at the time of seizure clearly established the bona fide of the assessee that it was innocently believed that form XXXI was not necessary for carrying Gas Cylinders from Hyderabad to Mathura nor there was any attempt to evade assessment or payment of tax dues or likely to be due under the Act. Para 5 : In Jain Shudh Vanaspati Ltd. v. State of U. P. [1983] 53 STC 54 ; 1983 UPTC 198, a division Bench of this Court has held that the power to detain the goods and levy penalty cannot be exercised Under Section 15-A (1) (o) read with section 28-A of the Act merely for the reason that the disputed goods were not accompanied with requisite documents or the documents accompanied them were false. It was further held that the power under those provisions, could be exercised only if the goods detained, are not accompanying them, were false and if there was material before the detaining authority to indicate that the goods are being imported in an attempt to evade assessment or payment of tax due or likely to be due under the Act. The view taken in the aforesaid decision, has been reiterated by this Court in a number of other cases some of which have been noticed, in N. G. Trading Company, Meerut v. Commissioner, Sales Tax [1994] 94 STC 441 ; 1993 UPTC 657 where a similar view was expressed. " ( 11 ) I have heard learned counsel for the applicant/revisionist as well as learned Standing counsel and have perused the records for the requirement of making a seizure and demand of security. The taxing authority has to indicate that the attempt were being made on the part of the applicant/revisionist to evade payment of tax due or likely to be due. The taxing authority has to indicate that the attempt were being made on the part of the applicant/revisionist to evade payment of tax due or likely to be due. Here the taxing authorities as well as Tribunal have not indicated and given a finding that the attempt was being made to evade tax due or likely to be due. On the other hand it was indicated that in respect of imposition of imported goods could be made by the assessing authority, the applicant/revisionist is a bona fide registered dealer and has himself bona fidely come forward though the accompanied goods were not with form XXXI therefore, in these circumstances the payment of security while releasing the goods by cash or bank guarantee was not justified. Therefore, on the submissions made by the applicant/revisionist the authorities were not satisfied that the goods were being imported and were not liable to be pay tax. In view of the above observation the order dated april 27, 2002 passed by learned Tribunal is set aside and the goods are directed to be released without the security forthwith and the taxing authority will be informed to the concerned assessing officer about the goods in question is be taken on. ( 12 ) THE trade tax revisions are allowed and the questions of law are dealt with accordingly. .