JUDGMENT : 1. Heard Sri R.R. Agarwal, learned Senior Counsel assisted by Sri Suyash Agarwal, learned counsel for the applicant and Sri B.K. Pandey, learned standing counsel for the respondent. 2. This revision has been filed challenging the order dated 2.7.2016 under Section 13A(4) of the Trade Tax Act 1948 (hereinafter referred to as “the Act”) passed by Member, Commercial Tax Tribunal, Bench-II Agra in Second Appeal No.267 of 2010 (2006-07). 3. Learned counsel for the applicant submits that the impugned order of the Tribunal is wholly erroneous and not sustainable in view of the fact that the Tribunal has completely failed to consider and records its findings on the basic question of availability of excise invoice No.10104242 dated 24.7.2006, which according to the applicant was accompanying the goods alongwith bility but could not be produced by the driver of the truck as the main driver had kept the documents and had gone to his house without informing about it to the driver/the person incharge of the vehicle. He further submits that the applicant has discharged the burden by placing on record the required documents covering the goods in question including excise invoice and, therefore, burden shifted upon the respondents to disprove which could not be disproved by the respondents. He further submits that the Tribunal being the last finding authority should have recorded its finding of fact on the issues raised by the applicant in the memorandum of appeal and failure to do so renders the impugned order of the Tribunal to be wholly erroneous and liable to be set aside. In support of his submission he relied upon the judgment of this court in the case of Olympic Petroproducts Ltd. Meerut Vs. Commissioner Trade Tax 2014 NTN (54) 278 (paras 7 and 8). 4. Learned standing counsel supports the impugned order of the Tribunal and submits that the assessing authority as well as the first appellate authority have correctly recorded finding of fact that the alleged documents and the stand taken by the applicant were afterthought. 5. I have carefully considered the submissions of learned counsel for the parties. 6. Briefly stated the facts of the present case are that on 25.7.2006 a truck bearing Registration No. UP14J7865 carrying paints and varnishes was intercepted by the Mobile Squad, Hapur Unit, Ghaziabad at about 2.30 AM. 5. I have carefully considered the submissions of learned counsel for the parties. 6. Briefly stated the facts of the present case are that on 25.7.2006 a truck bearing Registration No. UP14J7865 carrying paints and varnishes was intercepted by the Mobile Squad, Hapur Unit, Ghaziabad at about 2.30 AM. The statement of the driver/person in charge of the truck, namely, Sri Ramu, son of Sri Yad Ram was recorded who stated that he has loaded the goods in the truck from Kasna Unit of M/s. Asian Paints (India) Limited and is carrying the same to the godown of the said unit at Meerut road, Ghaziabad and he does not have any documents relating to the goods in question. He further stated that the goods were loaded in the afternoon on 24.7.2016. 7. On these facts the Assistant Commissioner, Mobile Squad, Commercial Tax, Hapur Unit, Ghaziabad issued a show cause notice under Section 13-A of the Act fixing 30.7.2006 requiring the applicant to appear with evidence and to show cause why the goods be not detained under Section 13-A of the Act. He also requested for physical verification of the goods. On the date fixed the applicant did not submit any reply and instead sought time. Ultimately, the applicant submitted his reply on 3.8.2006 annexing therewith affidavit of the driver of the truck, namely, Sri Ramu and another affidavit of one Sri Mahakar Singh alleging him to be the main driver of the truck in question. In paragraph 3 of the reply the applicant stated that the truck in question crossed the main gate of the factory at 2:30 hours on 24.7.2006. 8. In the aforesaid reply the applicant took the stand that the driver was one Sri Mahakar Singh who took papers of the material but on account of some emergency he left the truck and handed over it to another driver Sri Ramu forgetting to inform that where the papers were kept by him in the truck and consequently when the truck was intercepted, Sri Ramu took sometime to trace the papers in the cabin of the truck but by the time the goods were seized treating the same to be not covered by documents. Two affidavits both dated 2.8.2006 were also filed alongwith reply. 9. Two affidavits both dated 2.8.2006 were also filed alongwith reply. 9. The authority did not find the reply of the applicant to be satisfactory and consequently goods were seized under Section 13-A read with Section 28 of the Act by seizure order dated 4.8.2016 giving an option to the applicant for release of the goods on deposit of cash security of Rs. 1,45,368 by bank draft which were released on deposit of the said security. 10. Subsequently, a notice was issued for imposition of penalty under Section 13-A(4) of the Act which was replied by the applicant by reply dated 30.3.2007. In his reply he took similar stand as was taken by him in his reply against seizure of goods. Additionally, the applicant submitted that since the goods were duly recorded in the books of accounts and were covered by an excise invoice under Rule 11 of the Central Excise Rules and as such no penalty can be imposed under Section 13-A(4) of the Act. 11. The Assessing Authority found the reply of the applicant to be unsatisfactory and afterthought and, therefore, imposed penalty of Rs. 1,45,368.00 by order dated 25.3.2009. Aggrieved with this order the applicant preferred First Appeal before the Additional Commissioner (Appeal), Commercial Tax, Range IInd, Agra, being First Appeal No.515/09 (2006-07) which was dismissed by order dated 7.6.2010. Aggrieved with the order of the First Appellate Authority, the appellant preferred Second Appeal 267/2010 which was dismissed by the impugned order dated 2.7.2006 passed by the Tribunal. Aggrieved with this order the appellant has preferred this revision under Section 58 of U.P. VAT Act, 2008. 12. Perusal of the Excise Invoice No.10104242, dated 24.7.2006 filed as Annexure I to the revision shows that it is computer generated invoice which contains a column of “time of issuance” but against it figure “14” has been mentioned by hand. The alleged bility of Aman Road Transport Pvt. Ltd. New Delhi, does not contain any description about the driver of the truck. Perusal of the statement of Sri Ramu, the driver of the truck recorded in the night at 2:20 A.M. on 25.7.2006 shows that he stated that he himself has loaded the goods in question from the factory of the appellant at Kasna in the afternoon of 24.7.2006. Perusal of the statement of Sri Ramu, the driver of the truck recorded in the night at 2:20 A.M. on 25.7.2006 shows that he stated that he himself has loaded the goods in question from the factory of the appellant at Kasna in the afternoon of 24.7.2006. Although show cause notice for seizure of the goods was issued immediately, requiring the applicant to submit reply by 30.7.2006, but the alleged documents were filed on 3.8.2006 alongwith reply. 13. The affidavit of the alleged driver Sri Mahakar Singh and the affidavit of person incharge/driver of the truck in question Sri Ramu both dated 2.8.2006 filed alongwith reply, are wholly untrustworthy inasmuch as in his affidavit the alleged driver Sri Mahakar Singh stated that he took out the truck from the factory gate on 24.7.2006 at about 2:30 hours but on receipt of some emergency call from his home he kept the papers in the truck and forgotten to inform it and when on the next date in the morning a call was received then he told where he had kept the papers. However, in his affidavit the driver/person in-charge of the vehicle Sri Ramu stated that he has proceeded for Ghaziabad at about 10 P.M. in night of 24.7.2006 taking the goods of M/s. Asian Paints, Kasna, Greater NOIDA for Ghaziabad and in the way the vehicle was chased and the truck was intercepted and the papers were demanded by the respondent authorities which he could not produce and consequently the goods were seized. Thus from the statement on oath given by Sri Ramu at the time of interception of the truck in question and as also evident from the affidavit dated 2.8.2006 that he loaded the goods in question in the truck and carried it out from the factory and was carrying it to Ghaziabad which is on a very short distance from the Kasna Unit. The story set up by the applicant that the goods were accompanying requisite papers, is wholly unbelievable inasmuch as the documents could not be produced by the driver of the truck either at the time of seizure of the goods or on the date fixed i.e. 30.7.2006. The driver of the truck i.e. Sri Ramu even did not disclose at the time of his statement on oath that there was another driver, namely, Sri Mahakar Singh. The driver of the truck i.e. Sri Ramu even did not disclose at the time of his statement on oath that there was another driver, namely, Sri Mahakar Singh. The alleged excise invoice is computer generated invoice which does not contain computer generated time rather time on the said invoice is hand written. The bility also does not contain any description of the alleged driver of the truck, Sri Mahakar Singh. The papers could not be produced by the applicant immediately after the goods were detained or even on the date fixed i.e. 30.7.2006 rather the applicant took further time to produce the papers as is evident from the seizure order dated 4.8.2006. 14. The case set up by the applicant that the alleged excise invoice was immediately produced by Sri Ramu, the driver of the truck, is also false in view of his statement on oath dated 25.7.2006 and his affidavit dated 2.8.2006 in which he stated in paragraph 9 that he contacted the driver of the truck on the next day who told him where the papers were kept in the truck. In his affidavit dated 2.8.2006 aforesaid Sri Ramu has not even disclosed that where the papers were kept in the truck as allegedly told and the name of the alleged driver. In contradiction to it, in reply to the show cause notice for penalty dated 30.3.2007 the applicant took the stand that the driver Sri Ramu requested for time to trace the papers in the truck but time was not granted and within few hours he contacted the other driver and traced the papers from the cabin and immediately produced it before mobile squad officers but they were not accepted. Thus the explanation offered in the reply can not be trusted. 15. In reply to the aforesaid penalty notice the applicant also stated that the applicant is a bonafide dealer and it could not be proved by the authority that the goods in question were out of the accounts. In this regard, concurrent findings of fact has been recorded by the Assessing Authority, the First Appellate Authority and the Tribunal that the story set up by the applicant was afterthought. In this regard, concurrent findings of fact has been recorded by the Assessing Authority, the First Appellate Authority and the Tribunal that the story set up by the applicant was afterthought. Perusal of the statement of Sri Ramu as well as his own affidavit and the affidavit of the alleged other driver Sri Mahakar Singh filed alongwith with the reply, coupled with the fact of non production of documents on the date fixed i.e. 30.7.2006 and the facts as briefly noted above clearly shows that the documents were prepared by the applicant to cover up the goods in question after the said goods were intercepted and seized. Thus, I do not find any infirmity in the concurrent findings of fact recorded by the Tribunal and the authorities below. 16. Considering the facts and findings as briefly noted above, I find that the applicant has completely failed to prove that the goods in question were accompanied with proper and genuine documents and were not omitted from being shown in the accounts, registers and other documents at the time when the goods were intercepted by the mobile squad authority. 17. Section 13A(4) of the Act provides that if the authority, after taking into consideration the explanation, if any, of the dealer or, as the case may be, the person incharge and giving him an opportunity of being heard, is satisfied that the said goods were omitted from being shown in the accounts, registers and other documents referred to in sub-section (1), it shall pass an order imposing a penalty not exceeding forty per cent of the value of such goods, as he deems fit. Provisions of Sections 13A(4) of the Act is clearly attracted on the facts of the present case as discussed above. Thus, I do not find any error of law in the impugned order upholding the penalty. 18. The judgment in the case of Olympic Petroproducts Ltd. Meerut (supra) relied by the applicant has no bearing or relevance on the facts of the present case. Thus, I do not find any error of law in the impugned order upholding the penalty. 18. The judgment in the case of Olympic Petroproducts Ltd. Meerut (supra) relied by the applicant has no bearing or relevance on the facts of the present case. In the said judgment the question before the Court was with regard to onus to prove and the Court held that initial burden lies upon the revenue but onus shifted upon assessee to show that item in question, though shown by him as 'waste paper' yet for the purpose of tax liability, it will be covered by different entry wherein lessor rate of tax is chargeable. Facts of the present case shows that the applicant has set up a story as noted above but could not prove it. Thus the judgment relied by the applicant does not support his case. 19. In view of the above discussion I find no merit in this revision and, therefore, it deserves to be dismissed. 20. In result the revision fails and is hereby dismissed. However, there shall be no order as to costs.