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TMI Blog1985 (7) TMI 343X X X X Extracts X X X X X X X X Extracts X X X X ..... s a copy of the order seizing the goods. It recites that the survey that wag made of the business premises/godown of the petitioners on August 17, 1984, revealed that goods substantially in excess of stocks mentioned in the books of account were found in stock. They could not be explained by the petitioners to have been purchased within the State of Uttar Pradesh within the prescribed period nor was any reply given by the petitioners in regard to the irregularities pointed out in the show cause notice due to which the officer (Sales Tax Officer) had reason to believe that the entries of sale and purchase in the account books were doubtful in nature. Further that the presence of excess stock was indicative of the fact that there was intention to evade tax. The goods, according to the order, could be released only on furnishing security for 40 per cent of the value of the goods. Annexures 2, 3, 4 and 11 to the petition are communications addressed to the Sales Tax Commissioner, U.P., on behalf of the petitioners on August 18, September 8, September 11, 1984, and April 24, 1985, requesting him to look into the matter, and for the release of the goods without any security. Annexure 5 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods could not be demanded. It has also been mentioned that on the facts mentioned in the seizure order, the breach could not be attributed to clause (o) or (q) of section 15-A(1) so that the penalty to the extent of 40 per cent of the value of the goods contemplated by clause (ix) of that section was not attracted at all. We may (reproduce) section 15-A(1) here. It is in these terms: "15-A. Penalties in certain cases.-(1) If the assessing authority is satisfied that any dealer or other person- (a) has, without reasonable cause, failed to furnish the return of his turnover or to furnish it within the time allowed and in the manner prescribed, or to deposit the tax due under this Act before furnishing the return or along with the return, as required under the provisions of this Act; or (b) has submitted a false return of turnover under this Act; or (c) has concealed the particulars of his turnover or has deliberately furnished inaccurate particulars of such turnover; or (d) has maintained or produced false accounts, registers or documents; or (e) has, without reasonable cause, failed to pay, within the time allowed, the tax assessed on him; or (f) fails to issue a b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may deem necessary, direct that such dealer or person shall pay, by way of penalty, in addition to the tax, if any, payable by him,- (i) in a case referred to in clause (a), clause (b) or clause (e), a sum not less than ten per cent, but not exceeding twenty-five per cent of the tax due if the tax due is up to ten thousand rupees and fifty per cent of the tax due if the tax due is above ten thousand rupees; (ii) in a case referred to in clause (c), clause (d), clause (1) or clause (m), a sum not less than fifty per cent, but not exceeding one and one half times, of the amount of tax which would thereby have been avoided; (iii) in a case referred to in clause (f), a sum of rupees fifty or double the amount of tax involved, whichever is greater, for the first default, and rupees one hundred or four times the amount of tax involved, whichever is greater, for the second and each subsequent default; (iv) in a case referred to in clause (g), a sum of rupees one hundred for each month or part thereof for the default during the first three months and rupees five hundred for every month or part thereof after the first three months during which the default continues: Provided that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ease of their goods and, thirdly, that the court would not be justified in entertaining the prayer for an interim order until the respondents had filed their return in the petition. Demand for security to the extent of forty per cent of the value of the goods can be made in a case where action is taken under section 28-A of the Sales Tax Act. That section envisages seizure or detention of goods that are imported or received from outside the State without obtaining a declaration in terms of that provision and empowers an officer-in-charge of the check post or barrier through which the goods pass as well as any other officer authorised in that behalf to take action in the matter. The provisions of sections 13 and 13-A of the Act have been made applicable to the proceedings under this provision. Sub-section (6) of section 13-A which is attracted on account of section 28-A(7) enables a dealer to seek release of the goods by a representation made to the Commissioner of Sales Tax or to an officer other than the Commissioner authorised in that behalf. Section 32 provides for the payment of a small amount by way of fee on any application or representation made to the Commissioner or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the alleged irregularity on the part of the petitioners, could always be realised from the dealer. Continued detention of the goods by the department, on the contrary, would result in holding up the business dealings of the first petitioner which could result in irreparable loss. The balance of convenience clearly is in favour of the dealer. Coming now to the main submission of the standing counsel-a submission put forward with great emphasis before us-regarding the jurisdiction of this Court in entertaining the prayer for an interim order at this stage, we may notice first the submission itself and then the authorities cited before us in that regard. The standing counsel argued that until the respondents are given an opportunity of filing their return, the court, particularly in matters of public revenue, has no jurisdiction to grant an interim order. Also, that a petitioner under article 226 of the Constitution could not be heard to pray for an interim order until the altenative remedy available to him had been exhausted. Under article 226 of the Constitution, this Court has, in appropriate cases, the discretion to protect a petitioner by an interim order. What is an approp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion of the standing counsel in the present case, particularly, when we find that the Assistant Commissioner of Sales Tax directed the petitioners to approach the Sales Tax Officer, Mobile Squad, and the repeated representations made to the Commissioner of Sales Tax remained unresponded, according to the petitioners. In Siliguri Municipality v. Amalendu Das AIR 1984 SC 653, A.P. Sen and M.P. Thakkar, JJ., while allowing an appeal by the municipality against an interim order granted by the Calcutta High Court restraining it from recovering of graduated consolidated rate on the annual value of holdings, observed, in paragraph 4 of the report, thus: "We will be failing in our duty, if we do not advert to a feature which causes us dismay and distress. On a previous occasion, a Division Bench had vacated an interim order passed by a learned single judge on similar facts in a similar situation. Even so when a similar matter giving rise to the present appeal came up again, the same learned judge whose order had been reversed earlier, granted a non-speaking interlocutory order of the aforesaid nature. This order was in turn confirmed by a Division Bench without a speaking order articula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alance of convenience and the likelihood of irreparable injury to a party should also be kept in mind. Union of India v. Oswal Woollen Mills Ltd. AIR 1984 SC 1264 is a case where the Calcutta High Court had passed an interim order in a petition filed before it by M/s. Oswal Woollen Mills Ltd. which had its registered office at Ludhiana in the State of Punjab and the respondents Union of India (through the Secretary, Ministry of Commerce, New Delhi), the Chief Controller of Imports and Exports, New Delhi, the Deputy Chief Controller of Imports and Exports, Amritsar, the State Trading Corporation of India, New Delhi, were all outside the jurisdiction of the Calcutta High Court excepting for the Collector of Customs, Calcutta. The principal respondents against whom the primary relief were sought were located at New Delhi. Only one of interlocutory reliefs was sought in respect of a consignment of beef tallow which had arrived at Calcutta port. The Supreme Court, while vacating the stay order granted by the Calcutta High Court and allowing the appeal of the Union of India, observed that: "...........An inevitable result of the filing of writ petitions elsewhere than at the place wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d abuse. The practice, in the words of O. Chinnappa Reddy, J., who spoke for the court, "which we now propose to forbid in the exercise of our powers under article 141 of the Constitution". We need not deal with this decision any further for it does not touch the question which we are considering. Assistant Collector of Central Excise v. Dunlop India Limited AIR 1985 SC 330 is a decision to which we wish to advert in greater detail for in it the aforesaid decisions have been referred to and upon the observations made wherein great emphasis was laid by the standing counsel. But, first the facts of that case: Dunlop India Limited, a manufacturer of tyres, tubes and other rubber products claimed exemption under a notification dated April 6, 1984, of the Government of India issued under rule 8(1) of the Central Excise Rules, 1944. It was denied the benefit of the notification by the Government. Dunlop India, which was claiming exemption to the extent of Rs. 6.05 crores, filed a petition under article 226 of the Constitution in the Calcutta High Court and sought an interim order restraining the Central excise authorities from levying and collecting excise duty. A learned single Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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