9911796707
TMI Blog1975 (12) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... ost Officer, Puzhal Check Post. The goods were therefore detained and notice was issued to the carrier, Thiruvalargal Commercial Goods Transport, proposing to callect advance tax as well as compounding fee. It appears that L.S. Gopalan, the Managing Director of the carrier-firm appeared before the Commercial Tax Officer Check Post and contended that the goods were booked at their Vizagapatnam branch for consignment to Hyderabad by their CGR 200 dt. 8th March, 1974. They did not have a full lorry laod for consigning the goods from vizagapatnam to Hyderabad. These goods were to be transhipped at Guntur. But these were erroneously loaded in Madras bound lorry along with other goods which were bound for Madras. This was said to be the circumsta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he felt that the object of evasion of tax was established and that the Check Post Officer was entitled to act under s. 42 of the Act. The appellant has therefore come up in second appeal before us. 3. Thiru M. Srinivasachari, the learned Authorised Representative claimed that there was nothing to disbelieve in appellant s version. Errors in loaning are not unusual. After all the goods were finally taken back to Hyderabad. There was no sale within the State. He contended that there was neither initial jurisdiction to retain the goods nor any authority for continuing to hold that goods till tax is collected, when there had been liability under the local Act. It was claimed that the tax collected amounts to a penalty for the mistake committ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en listed in s. 31 and that therefore the appellant is entitled to file an appeal. He also stated that where the initial levy is prima facie unwarranted, it is always open to the tax payer to file an appeal against the order. If however the amount is refunded on his application, he had no objection if the appeal is dismissed. He submitted that it is not open to the authorities to detain the advance tax without a proper assessment. 4. We have carefully considered the records as well as the arguments. The Check Post Officer was certainly entitled a to detain the goods even on suspicion. These goods were brought in a lorry without accompanying any documents. Hence this was sufficient ground for assuming that there was possible action under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yment of the tax before release of the goods and the carrier had no other alternative. There is no record either in the form of an order or a notice to show that the authorities considered the appellant s explanation which were supported by a certificate available at page 17 of the offence file. We therefore find that the collection of tax is prima facie illegal in the absence of any formal order after "enquiry" prescribed under s. 42(3)(ii) and a finding that it was necessary to detain the goods. The entitled to succeed on this score alone. We have however assumed that there is a valid order and proceeded to consider the appellant s claim on merits. Though as we pointed out earlier, the enquiry was initially prima facie justified, the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the consignor or consignee. But shortly thereafter, the carrier has explained the position. We are, therefore, unable to support the order of the AAC. We are also told that the goods on release were sent back to Hyderabad for delivery to the consignee with the consent of the authorities. In other words, the goods were taken out of the State. hence there is no question of any sale involved with the State. Even if suspicion of the authorities could be stated to have some basis, the matter remains one of the suspicion. Tax could not be retained merely on such suspicion. No doubt, it was open to the appellant to have preferred a petition for refund under r. 35(10) of the Tamil Nadu General Sales Tax Rules, 1959. It is stated that he had fil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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