2014 (7) TMI 624 - HC - VAT and Sales Tax

Detention of goods - interstate movement - demand of cash security of 10 lakhs for release of goods - consignor and consignee both are registered dealers - supply of Horizontal Automatic Vacuum Assisted Dry Priming Mine De-watering Heavy Duty Bare Pump, which is a specialised pump for suction of water from deep mines. - Held that - There is every likelihood that in case penal proceedings are drawn against the applicant, there are fair chances that the applicant may succeed in proving that the seized good is not meant for sale in U.P. These were relevant factors which ought to have been considered by the Assistant Commissioner, while deciding the statutory representation under the proviso to sub-section (7) of section 48 of the Act, as it confers a reserve of discretion in him to release the goods without security or on depositing lesser amount or furnishing security other than cash or indemnity bond, as he may deem fit. The discretion has to be exercised judiciously and is not based on ipse dixit of the authority. While it should be left open to the authorities to initiate penalty proceedings against the appellant, but at the same time, the order for release on furnishing cash security of ₹ 10 lakhs cannot be sustained. Interest of justice would be met in directing the applicant to furnish bank guarantee for the said amount of ₹ 10 lakhs. - in case, the penalty proceedings are not initiated within 15 days, the bank guarantee will cease to be valid thereafter. - Decided partly in favour of assessee.

Issues Involved:
1. Legality of seizure of goods for non-production of Transit Declaration Form (TDF).
2. Requirement and implications of carrying the original builty during transportation.
3. Justification of the demand for cash security for the release of seized goods.

Issue-Wise Detailed Analysis:

1. Legality of Seizure of Goods for Non-Production of Transit Declaration Form (TDF):

The primary issue revolves around whether the respondents were justified in seizing the pump and demanding cash security due to the absence of a properly filled TDF. The petitioner argued, relying on the judgment in *M/s. Prakash Transport Corporation*, that the absence of a TDF only gives rise to a rebuttable presumption and may attract penal consequences but does not justify the seizure of goods. The court in *Prakash Transport Corporation* observed that "the goods cannot be seized for non-production of it." The court further noted that the practicalities of expecting drivers to download and fill TDFs correctly are unreasonable. The court reiterated that the absence of a TDF should not lead to the seizure of goods but could result in penal proceedings.

2. Requirement and Implications of Carrying the Original Builty During Transportation:

The second issue pertained to the objection regarding the possession of a photocopy of the builty issued by M/s. Rajendra Carrying Corporation instead of the original builty from M/s. Aman Transport Company. The petitioner contended that the driver was carrying the original builty of M/s. Aman Transport Company, and there is no statutory requirement under section 52 or any order issued by the Commissioner under Rule 58 to carry the builty, failing which goods can be seized. The court found that the controversy was primarily confined to the objection regarding the TDF, and the submission regarding the builty was not disputed by the standing counsel.

3. Justification of the Demand for Cash Security for the Release of Seized Goods:

The court examined whether the authorities were justified in demanding cash security of Rs. 10 lakhs for the release of the seized goods. The petitioner argued that the driver's lack of knowledge about the route led to an incorrect TDF and that there was no intention to evade tax. The court noted that the goods in question were specialized pumps meant for deep mines, indicating no intention of sale within the state. The court criticized the Assistant Commissioner for not considering the surrounding circumstances and the law propounded in *Prakash Transport Corporation*. The court concluded that while penalty proceedings could be initiated, the demand for cash security was not justified. Instead, the court directed the petitioner to furnish a bank guarantee of Rs. 10 lakhs for the release of the goods.

Conclusion:

The court allowed the revision, directing the petitioner to furnish a bank guarantee of Rs. 10 lakhs within a week for the release of the seized goods. It also provided that the bank guarantee would remain valid for an initial period of 15 days, within which the respondents could initiate penalty proceedings. If no such proceedings were initiated, the bank guarantee would cease to be valid thereafter. The court emphasized the need for a judicious exercise of discretion by the authorities and highlighted the impracticalities and legal misinterpretations involved in the case.

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