JUDGMENT VIKRAM NATH, J. - Both these revisions arise out of the proceedings for the assessment year 2000-01. Revision No. 2557 of 2005 relates to the assessment proceedings under section 7(3) of the U.P. Trade Tax Act, 1948 (hereinafter referred to as, "the Act") whereas Revision No. 2558 of 2005 relates to penalty proceedings under section 15A(1)(o) of the Act. The mobile squad of the Trade Tax Department intercepted the truck carrying certain goods on April 30, 2000. The truck was stationed at the police station and the goods were given to the custody of the station house officer on May 31, 2000. Notice under section 13A of the Act for seizure of the goods demanding explanation from the dealer was issued by the Trade Tax Department on June 1, 2000. Statement of the driver was also recorded. It is not disputed that the driver deposed that he was carrying the goods from Orai to Kanpur; he further deposed that he did not have complete papers and lastly that the relevant papers were with the owner of the goods who was following in a different vehicle. On the same day, i.e., June 1, 2000, the owner produced the relevant papers which contained two bills Nos. 115 and 116 showing that the goods which were being transported were tax-paid goods and have been purchased within the State of U.P. and were being transported to another district within the State of U.P. Despite the same, the department lodged a F.I.R. with the concerned police station and handed over the goods in the "supurdagi" of station house officer. On June 3, 2000 seizure order was passed after considering the explanation given by the owner and security of Rs. 1,00,000 (rupees one lac) was demanded for release of the goods by the Trade Tax Department. In the meantime, as F.I.R. had been registered and goods were given in the custody of station house officer of the concerned police station, the dealer applied for release of the goods before the Chief Judicial Magistrate. By order dated June 21, 2000, the Chief Judicial Magistrate directed for release of the goods on furnishing of two sureties of Rs. 2,00,000 each with a rider that goods shall be produced in court as and when required. By order dated June 21, 2000, the Chief Judicial Magistrate directed for release of the goods on furnishing of two sureties of Rs. 2,00,000 each with a rider that goods shall be produced in court as and when required. In the meantime, the department treating the goods to have been illegally imported into the State without being accompanied by relevant papers, passed penalty order on September 6, 2000 under section 15A(1)(o) of the Act for violation of the provisions of section 28A of the Act. On November 9, 2000 a survey was made by the Trade Tax Department and during survey the goods which had been seized on May 30, 2000 and subsequently released under the order of the Chief Judicial Magistrate dated June 21, 2000, were not available at the business premises of the dealer. Despite being asked to inform about the storage of the goods, the dealer or its agent present at the business site failed to disclose the where about of the said goods. The assessing officer accordingly treating the said goods to have been sold by the dealer during the period of assessment of its turnover, imposed the liability of tax on the same vide assessment order dated October 3, 2001. Against the penalty order as well as the assessment order the dealer preferred appeals which were dismissed by the Deputy Commissioner (Appeals) vide order dated September 28, 2001 and February 7, 2002 respectively. The dealer preferred two second appeals which were heard and decided together vide impugned order dated September 15, 2005 against the dealer. Aggrieved by the same the present two revisions have been filed. I have heard Sri R. D. Gupta, learned counsel for the dealer - applicant and Sri K. M. Sahai, learned Standing Counsel for the department and perused the record filed along with the revision. Aggrieved by the same the present two revisions have been filed. I have heard Sri R. D. Gupta, learned counsel for the dealer - applicant and Sri K. M. Sahai, learned Standing Counsel for the department and perused the record filed along with the revision. In T.T.R. No. 2557 of 2005 the following question of law has been sought to be raised - "Whether the Trade Tax Tribunal was legally justified to partly allow the appeal and fix the turnover without considering the material on record and argument of the counsel and explanation of the revisionist and without showing any reason or basis ?" In T.T.R. No. 2558 of 2005 the following questions of law have been sought to be raised - "(i) Whether the Trade Tax Tribunal was legally justified to partly allow the appeal and fix the penalty amount without recording any basis or finding and without considering material on the record and arguments of the counsel ? (ii) Whether the Trade Tax Tribunal was legally justified to ignore or reject the circular of the Commissioner dated June 3, 2000 in regard to lodging of F.I.R. in the police station about seized goods ? (iii) Whether penalty was justified by Trade Tax Officer when the seized goods became the court property under the jurisdiction of the criminal court ?" Sri R. D. Gupta, learned counsel for the dealer - applicant has made following submissions. According to him, the Commissioner of Trade Tax had issued several circulars including the circular dated April 3, 2000, March 8, 2001, March 23, 2001, October 13, 2001 and November 23, 2001 and in view of the directions contained in these circulars once the criminal proceedings have been initiated by lodging an F.I.R., the department ought to have restrained itself from passing any order demanding security or imposing penalty. It is thus, submitted that the order of the penalty during the pendency of the criminal proceedings which according to him is still pending was in the teeth of the circulars of the Commissioner which are binding upon the assessing officers. It is thus, submitted that the order of the penalty during the pendency of the criminal proceedings which according to him is still pending was in the teeth of the circulars of the Commissioner which are binding upon the assessing officers. The next submission of Sri Gupta is that the dealer had led sufficient evidence in support of his case to establish that the goods were being transported after having been purchased from within the State to another district within the State and such goods were already tax-paid and therefore, not liable to further tax out such material and evidence led by the dealer has not been considered by the Tribunal and it has illegally dismissed the second appeal. Third submission on behalf of the dealer is that in any view of the matter it is not a case of penalty under section 15A(1)(o) of the Act inasmuch as there was no evidence to show that the goods had been imported and until and unless the department had established that the goods were being imported, no penalty could be levied under section 15A(1)(o) of the Act. On the other hand, Sri K. M. Sahai, learned Standing Counsel has submitted that the driver of the truck initially tried to escape. However, after chasing it was intercepted by the mobile squad whereupon he furnished false information and only on checking it was revealed that it contained 75 bags supari which were transported without relevant papers required under law to accompany such goods. It is further submitted that after the release of the goods, the dealer had sold the same without making any entries in the account books for the reason that they were not found in the survey dated November 9, 2000 and therefore, the assessment involving the turnover of such seized goods were justified. The dealer has been subjected to seizure and penalty proceedings earlier on several occasions for importing supari without the relevant papers. It is further submitted that goods were being imported as from the receipt of the bags of the supari it was clear that they belong to Kerala and Gwalior and the dealer had failed to produce any material that the said goods were imported by the dealer after payment of necessary tax. Thus, according to him, it is not a case where there was no evidence to show that goods were not being imported. Thus, according to him, it is not a case where there was no evidence to show that goods were not being imported. Sri Sahai has further submitted that the circulars issued by the Commissioner could not prohibit the assessing officer from continuing with the assessment proceedings inasmuch as the statute provides limitation for making assessment and in case assessment is not made in time it may become time barred. In addition it was submitted that the circulars relied upon by the counsel for the dealer were subsequent to the seizure and penalty orders and therefore had no application to the facts of the present case. The first submission of Sri R. D. Gupta that circulars issued by the Commissioner have not been followed by the authorities of the Trade Tax Department apparently does not have any merit. The appellate authority as also the Tribunal both have rejected the said submission for the reason that these circulars were subsequent to the seizure and penalty proceedings. Truck was intercepted on May 30, 2000 and the seizure order was passed under section 13A of the Act, after giving notice, by order dated June 30, 2000, demanding security of Rs. 1,00,000 (rupees one lac) for release of the seized goods. The penalty order was passed on September 6, 2000. The circulars on which reliance has been placed are dated March 8, 2001, March 23, 2001, October 13, 2001 and November 23, 2001. Only one circular which is prior to the date of seizure and penalty order is dated April 3, 2000. However, this circular does not specifically prohibit continuation of the seizure/penalty/assessment proceedings and only provides that whenever goods are seized on account of evasion of tax, F.I.R. should be registered. In the present case the F.I.R. has been registered following the said circular. As already mentioned that rest of the circulars were issued in the year 2001 subsequent to the seizure and penalty proceedings. In view of the above the first submission of the learned counsel for the dealer is rejected. The next submission on behalf of the revisionist is that the evidence led by the dealer had not been considered by the Tribunal, thereby vitiating its judgment. It has been submitted that the dealer had produced two Bills Nos. In view of the above the first submission of the learned counsel for the dealer is rejected. The next submission on behalf of the revisionist is that the evidence led by the dealer had not been considered by the Tribunal, thereby vitiating its judgment. It has been submitted that the dealer had produced two Bills Nos. 115 and 116 by which the goods were being transported from Orai within the State of U.P. to Kanpur, again within the State of U.P. Further the revisionist had filed the goods transport receipt showing that the goods had been booked with Jai Maa Durge Transport Union (Mini Truck), Orai for being transported to Kanpur. All these evidences dearly established that the transportation of the goods was within the State of U.P. and it was not a case of import of goods from outside the State of U.P. It was submitted that if these evidences were taken into consideration, they clearly prove that there was no import of goods and the transportation was only within the State of U.P. of tax-paid goods. From perusal of the judgment of the Tribunal it is apparent that there is discussion with regard to the said documents filed by the dealer. The Tribunal has rejected the said documents and has drawn an inference against the dealer. Further from a perusal of the judgment of the Tribunal it is apparent that the Tribunal disbelieved the case set up by the dealer that he had purchased the said tax-paid goods from Kanpur as there was no evidence produced by the dealer to show the purchase of the disputed 75 bags of Supari. Further, the Tribunal had held that as the goods which were seized and subsequently released in favour of the dealer under the order of the Chief Judicial Magistrate, in the supurdagi of the dealer were not available in the subsequent inspection/survey at its premises which clearly led to the conclusion that such goods had been sold by the dealer. The finding recorded by the Tribunal was based upon the material available on record. I do not find any infirmity in the said finding of fact recorded by the Tribunal and therefore, the assessment made by the Tribunal cannot be faulted with. The finding recorded by the Tribunal was based upon the material available on record. I do not find any infirmity in the said finding of fact recorded by the Tribunal and therefore, the assessment made by the Tribunal cannot be faulted with. The third and last submission on behalf of the dealer is that before imposing the penalty under section 15A(1)(o) of the Act, the department had to discharge its burden that the goods had actually been imported. Even if the dealer had failed to lead evidence to show that the goods had not been imported and had been purchased within the State of U.P. there could not be any presumption that the goods were being imported. In support of his contention Sri Gupta had relied upon the following decisions : 1. Securipax India Pvt. Ltd., Ghaziabad v. Commissioner of Sale Tax reported in [2001] UPTC 126. 2. Delta Engineering Co. (Pvt.) Ltd., Meerut v. Commissioner of Sales Tax reported in [1993] UPTC 89. 3. Kanhoria Pipe and Fitting Company v. Commissioner of Sales Tax reported in [2001] 121 STC 415 (All); [2000] UPTC 81. On the other hand, Sri K. M. Sahai, learned Standing Counsel has submitted that in absence of any evidence to show the purchase within the State of U.P. the authorities and the Tribunal have rightly held that there was violation of section 28A(1) of the Act and it necessarily entailed the penalty under section 15A(1)(o) of the Act. From perusal of the judgment of the Tribunal it appears that the Tribunal had believed that the goods were being imported only for the reason that the bags containing the "supari" was bearing marks of manufacturer of Kerala and Gwalior. In my opinion, this finding cannot be sustained. Merely because the bags bore the marks of manufacturers of Kerala and Gwalior it was not enough to hold that they were being imported. It is possible that some other party had imported the goods in U.P. and thereafter sold it to the dealer. The importer may not have been a registered dealer and may or may not have paid the tax. The dealer could not be held to be an importer. It is possible that some other party had imported the goods in U.P. and thereafter sold it to the dealer. The importer may not have been a registered dealer and may or may not have paid the tax. The dealer could not be held to be an importer. But definitely as the dealer had failed to prove that he had purchased tax-paid goods within the State of U.P. he was liable to pay tax as the goods were found missing in the subsequent survey which indicated that the goods had been sold by the dealer. The law with regard to imposition of penalty is that the burden lies on the department to establish violation of section 28A(1) of the Act. With regard to turnover of the sales the burden would lie on the dealer. Similar view has been taken in the judgments referred to above, relied upon by the learned counsel for the dealer. In view of the above discussion, the imposition of penalty cannot be justified and has to be set aside. Whereas the liability of tax has to be maintained. In view of the above discussion, the revision being T.T.R. No. 2558 of 2005 with regard to the penalty deserves to be allowed and the other revision being T.T.R. No. 2557 of 2005 with regard to the assessment deserves to be dismissed. It is, accordingly, ordered. There shall however be no order as to costs.