9911796707
TMI Blog1988 (3) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... gn countries. For the purpose of import, Central Government laid down import policy. As per the procedure, import is to be made by a Government company established for the purpose known as "Metal Scrap Trading Corporation Limited" (hereinafter referred to as "Government company"). The intending consumers of carbon steel melting scrap are to make applications for allotment of imported carbon steel melting scrap to the Government company and the allotted goods would be obtained by the consumers on import. 3.. Petitioner and various other similar manufacturers made applications. On receipt of applications, allotments of different quantities were made by the Government company in favour of various consumers who including the petitioner were c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... furnished under section 16-A of the Act read with rule 94(4)(a) made thereunder in support of the transport. On 4th April, 1987, the Sales Tax Officer in-charge of the check-post before whom the way-bill was produced found it to be defective and incomplete and also found that there was evasion of tax in respect of the goods carried. He issued notice in form No. VI-B to the petitioner-company to rectify the defects and omissions or to pay an amount of Rs. 1,000 immediately failing which action would be taken under rule 94(4)(b) of the Rules. On 7th April, 1987, the said Sales Tax Officer passed an order that opportunity was given to rectify the defects and omissions. Such opportunity was also given to pay an amount of Rs. 1,000. Despite the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 14th April, 1987 that there is no defect in the way-bill and the omissions shall be furnished. No importance was given to such written intimation. Despite such intimation dated 14th April, 1987, the order which had already been passed by the Sales Tax Officer on 7th April, 1987, was issued to the petitioner on 22nd April, 1987. Immediately after receipt of this order, the petitioner has filed this writ application apprehending that at each and every time when the consignments would pass through the check-post the Sales Tax Officer would detain the goods of the petitioner and exercise the power under rule 94(4)(a) of the Rules and the goods are likely to be auctioned. 5.. While admitting the writ application, this Court passed an inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be supplied which are minor in nature, the Sales Tax Officer should not have detained the goods. Even if the order was passed on 7th April, 1987, after receipt of the letter dated 14th April, 1987 from the petitioner, the order had been issued on 22nd April, 1987 without considering the explanation of the petitioner and this action of the Sales Tax Officer reveales that he was not prepared to apply his judicial mind and has determined to collect the demand on the threat of taking action under rule 94. Dr. Pal submitted that the nature of the transaction is such that evasion of tax cannot be considered by the Sales Tax Officer in exercise of the power under rule 94. 8.. Notice in form No. VI-B indicates that the Sales Tax Officer found d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt under section 12(5) of the Act and in course of hearing, the petitioner has applied for amendment of the writ application seeking to quash the notice. We were not inclined to allow the amendment since it was filed at the last stage of hearing to widen the scope of challenge. Thereupon, the petitioner prayed for withdrawal of the petition for amendment to challenge the same later, if so advised. The prayer was allowed. 11.. The short question for consideration in this case, thus, is whether the Sales Tax Officer is justified in detaining the goods at the check-post and in demanding amounts on the ground that he found defects/omissions in the way-bill and evasion of tax by the Government company. 12.. It is not disputed that after rece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d any sale. Accordingly, there is no tax evasion by the petitioner. 14.. Assuming the Government company to be the seller of the goods to the petitioner, which is in dispute, no inference of evasion of tax by the Government company would arise. The term "evasion" in the context must relate to the conduct of the Government company and mere nonpayment cannot lead to an inference of evasion when it disputes its liability before the authorities. Where a person causing the movement of goods to pass through a check-post is not a dealer, there is no scope of his being assessed to tax. In such cases, demand on him to pay a certain sum to avoid confiscation may not be called for unless a clear case of evasion is made out. However, the said questio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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