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TMI Blog2013 (3) TMI 337X X X X Extracts X X X X X X X X Extracts X X X X ..... me. The goods in transit were detained by the Mobile Squad at Mathura and a show cause notice dated 28.11.2012 was given as to why the goods may not be seized. In response to the show cause notice the transporter filed reply contending that in the Transit Declaration Form the goods by mistake have been described as cotton fabric instead of cotton coated fabric and the Tin number of the Kolkata dealer differs slightly. Since the consigner and the consignee are both registered dealers of their respective States and as all necessary documents are accompanying the goods they not liable to be seized. The Assistant Commissioner Commercial Tax mobile squad on consideration of the reply passed a seizure order on 4.12.2012 in purported exercise of power under Section 52 of the U.P. Value Added Tax Act, 2008 (hereinafter referred to as the Act) but ordered for the release of the same on furnishing security of Rs. 1,60,000/- @ 40% of the value of the goods amounting to Rs. 4,00,000/-. The transporter represented against it by filing an application under Section 48(7) of the Act which was rejected on 28.1.2013 and the order of release of the goods as aforesaid was confirmed. The appeal pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seizure order. In common understanding, the release of the goods can only be demanded by the owner of the goods. A transporter who is not the owner of the goods cannot ask for the release of the goods in his independent capacity. He cannot even be a "person aggrieved" by the demand of the security for the release of the goods. The transporter is not claiming himself to be the owner or dealer of the goods therefore, a preliminary question arises as to whether he is a "person aggrieved" by the seizure of the goods and is entitle to get them released when neither the consigner nor the consignee who may be the rightful owners of the goods are not coming before the court either challenging the order of seizure or the order of the tribunal refusing to release the goods without security. Sri N.C. Gupta, learned counsel for the transporter submits that as under Section 52 of the Act read with Rule 58 of the Rules, the driver or the person incharge of the vehicle carrying the goods is responsible to carry such documents as may be prescribed, the petitioner is also the person aggrieved entitle to challenge the seizure order and that of the tribunal. Section 52 of the Act as well as Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding of Sub-Sections (4) and (7) of Section 48 of the Act which provides for the service of notice not only upon the person incharge of the goods at the time of the seizure but also upon the dealer. The aforesaid provision indicates that in reality the notice and the order is required to be served upon the dealer but as on spot the dealer is not to be found, it is permitted to be served upon the person incharge of the vehicle/goods with the intention that he will inform the dealer who would appear and contest the proceedings or allow them to be persued by the person incharge. Thus, by mere service of the show cause notice upon the person incharge of the vehicle or the order of the seizure upon him would again not make him the "person aggrieved" to ask for the release of the goods or for waving the security demanded unless the transporter produces an authority of the owner of the goods to get them released on his behalf. This apart, the appeal to the tribunal Section 57(4) of the Act can be preferred by the person aggrieved. The relevant part of Section 57(4) of the Act reads as under: "(4) Any person aggrieved by [an order passed under section 42, section 55] section 56, a deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Roadlines India Ltd. Ghaziabad Vs. The Commissioner, Trade Tax, U.P. Lucknow wherein the Transporter was held to be liable for the act of the driver and rightly so as the driver of the vehicle is an agent of the transporter. The aforesaid decision is not an authority on the "person aggrieved". It is therefore, of no assistance to the transporter. Similarly in M/s Ashok Road Lines, Agra Vs. Commissioner of Sales Tax, U.P. Lucknow 2003 NTN (Vol.22) 412, his Lordship of this court while dealing with a case under Section 28-B of the U.P. Trade Tax Act held the transporter to be person incharge of the vehicle. There are no two opinions on the above ratio but this does not help the transporter to substantiate his plea that he is a person aggrieved entitle to release of the goods. In Commissioner of Sales Tax Vs. S/S/ Guru Bux Singh 1992 U.P.T.C. (65), relied upon by the counsel for the transporter the court only held that a "person" comprehends even a transporter and he may be made liable to pay penalty. Again the aforesaid decision does not deal with the expression "person aggrieved" or holds that even a transporter is entitle to get the seized goods released. The transporter may be l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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