2015 (3) TMI 1003 - HC - VAT and Sales Tax

Seizure of goods - Conditional release of goods on deposit of 30% cash duty - Held that - It is not disputed that seized commodities viz. Pan Masala and Zarda were branded items from the manufacturer M/s Shimla Special Flavour. These goods attract 30% tax on the point of sale by the manufacturer in view of notification no.896 dated 30.8.2012, with no further tax on re-sale. The applicant firm has produced purchase vouchers from M/s Shimla Special Flavour evidencing payment of 30% tax. The stock books maintained in ordinary course of business and dispatch challans evidencing shifting of stock from registered godown to the new one, were also produced alongwith explanation to the show cause notice. The documents have been discarded on the sole ground that there has been delay of three days in producing the documents since the date of seizure of the goods. It is not in dispute that at the time of inspection, no records were produced. The documents produced on 15.9.2014 were discarded on the ground of delay in filing the same. The applicant admits that its head office is located only at a distance of one kilometer from the place of seizure. In these circumstances, the view of the authorities seizing the goods, for discarding the documents, cannot be said to be illegal or irrational to warrant interference by this Court. Since, at the time of inspection, the applicant firm failed to produce relevant records and as such, the officer making inspection, was justified in exercising the power vested in it under Section 48 (1) (ii) of the Act. In the penalty proceedings, the applicant will get full opportunity to establish its bonafides and to correlate the seized goods with those mentioned in the purchase vouchers and dispatch challans. Thus, question no. (1) stands answered against the applicant and in favour of the Revenue. The case of the applicant that whether the goods seized are from the stocks maintained at the registered head office and the godown and are referable to purchase invoices, is still to be gone into in the penalty proceedings, as findings in the seizure order are only of prima facie nature. In case, the explanation of the applicant is ultimately accepted in penalty proceedings, the goods seized would not attract any further tax. The explanation of the applicant regarding delay in getting new godown registered viz. coming into force of new procedure of online registration with which the applicant was not conversant, cannot be disbelieved altogether. It has not been disputed that prior to inspection on 11.9.2014, the applicant had already applied for password on 6.8.2014, which application, according to the Revenue, was disposed of on 12.8.2014, while, according to the applicant, it remained pending as the password was communicated to it in the evening of 10.9.2014. Even if the version of the Revenue, in this regard, is accepted, being a finding of fact, but still it is evident therefrom that the applicant had already taken steps for getting the new godown registered. There appears to be some force in the argument of the revisionist that there was no mensrea on part of the applicant and the delay caused in getting the new godown registered, was for reasons beyond its control. However, these questions are still to be examined in the penalty proceedings and as such, no final opinion is expressed at this stage, lest it may prejudice the parties. However, I am of the firm opinion that it is a fit case warranting exercise of power under the first proviso to sub-section (7) of Section 48 of the Act. Applicant should deposit 50% of the amount required to be deposited by order of the Tribunal in cash and the remaining half in the form of security other than bank guarantee. Counsel for the applicant Sri Kunal Srivastava agreed to the proposal and Sri Sanjeev Sankhdhar appearing on behalf of the Revenue stated at the Bar that he has no objection to such condition being imposed on the revisionist for release of the goods. - Decided partly in favour of assessee.

Summary

Issues:
1. Whether the seizure of goods was justified?
2. Whether demanding cash security of 30% of the value of goods was appropriate?

Analysis:

Issue 1:
The revisionist firm, a registered dealer under the Uttar Pradesh Value Added Tax Act, 2008, was trading in Pan Masala and Zarda, non-vatable goods. The Assistant Commissioner conducted a survey and seized the stock, leading to a petition for release of seized goods. The Tribunal partially allowed the appeal against the rejection of the release petition. The revisionist argued that the seizure was unjust as the goods were accounted for in their books, purchased with tax paid, and the delay in notifying a new godown was due to procedural changes. The Revenue contended that the firm failed to produce records promptly, justifying the seizure. The Court found the seizure reasonable, as records were not produced during inspection, and the delay in submitting documents was not justified, supporting the Revenue's position.

Issue 2:
Regarding the demand for cash security, the Court noted the power vested in the Commissioner to release goods without deposit or with a lesser amount. The applicant's claim that the seized goods were from registered stocks and related to purchase invoices would be examined in penalty proceedings. The Court acknowledged the applicant's steps to register the new godown and the lack of mens rea in the delay. It was deemed a case suitable for exercising power under the Act's provisions. The Court proposed a 50% cash deposit and the rest as security other than a bank guarantee for the goods' release, with both parties agreeing to the arrangement. Consequently, the revision was partially allowed, modifying the Tribunal's order on deposit conditions for the release of goods.

This detailed analysis of the judgment from the Allahabad High Court addresses the issues of seizure justification and cash security demand comprehensively, outlining the arguments presented by both parties and the Court's reasoning in reaching its decision.