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TMI Blog2013 (4) TMI 325X X X X Extracts X X X X X X X X Extracts X X X X ..... nquiry /adjudication in O.R No.1546/3/11-12, CTCP Walayar pursuant to Ext.P24 & P25 notices or any subsequent notices." 2. The learned single Judge found that prayer is untenable. It is further found that it is premature to assume that an order be passed against the petitioner and that the departmental authority will act illegally and invoke the bank guarantee. It is further found that on the other hand, if the order is adverse to the appellant, it is for them to file and seek stay from the appellate authority. It is also possible for them to approach this court at that stage and seek appropriate protective orders. On these reasons, the writ petition as filed, was found to be unsustainable and it was dismissed. 3. We heard learned counsel for the appellant and also the learned Government Pleader. 4. According to the appellant, from the past experience, the appellant apprehends that the second respondent will pass order of penalty and proceed to encash/enforce the bank guarantee without serving the order and without granting time which is provided under law. Annexure-I purports to be an order by the officer imposing penalty on the appellant on an earlier occasion. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r that when security is furnished and if the penalty is imposed, then there must be a waiting period of 30 days and if penalty is not paid then alone can the security be enforced. 7. Per contra the learned Government Pleader would submit that the provisions of Sub section 8 of section 47 deal with a case where the goods are seized and there after a penalty is imposed. In other words, only in a case where when goods had been seized and penalty is imposed the law contemplates the waiting period of 30 days before further steps are taken by way of sale of seized goods for the realisation of penalty in the manner provided in subsection 11. In this case, it is contended by learned Government Pleader that goods have admittedly not been seized. Learned Government Pleader would submit that the Rules must be interpreted in a harmonious fashion with the provisions of parent Act and on the basis of the said interpretation, the appellant may not be entitled to the benefit of waiting period mentioned in sub section 8 of section 47. He would also point out the difficulty which is likely to be encountered by the department, namely that if there is a waiting period of 30 days, even in a case whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the owner of the goods or his representative or the driver or other person in charge of the vehicle or vessel executing a bond with or without sureties for securing the amount due as security: Provided further that where the documents produced in support of the transport of goods evidence defects of a minor or technical nature and the goods are owned by a dealer registered under this Act, such officer may allow the goods to be transported after realising the tax on the turnover of the goods under transport." 10. In our view section 47(2) contemplates power with the officer to detain the goods and goods so detained can be transported only on the owner of the goods or his representative or the driver or other person in charge of the vehicle on behalf of the owner of the goods, furnishing security for double the amount of tax likely to be evaded. No doubt, the provisos contemplates transport being permitted on executing a bond with or without sureties for securing the amount due as security and also goods being permitted to be transported after reaslising the tax on the turnover of the goods under transport. Thereafter Sub Rule (8) contemplates the situation where the owner of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjusted against penalty under Sub-Rule (a). Likewise under clause (b), if any other security or bond has been furnished, the Officer is to take steps for reaslising the amount from the security and adjust the same towards penalty, and expenses and incidental charges after the waiting period is over. In other words, without waiting for the expiry of the period mentioned in section 47(8), even if the goods have not been seized, and on the other hand the goods have been released under section 47(2) on furnishing either cash security or any other security, the security can be enforced only after the expiry of 30 days. This is the unambiguous declaration of law, contained in the Rules. 11. We consider that the conclusion we have so arrived at is in no way unwarranted, having regard to sub rule (9) of Rule 67. Sub Rule (8) of Rule 67 which we have already extracted deals with a case where on the basis of order of penalty. However, we are contemplating a situation where the penalty is not paid. As to what will happen if the penalty under section 47 is not paid and the goods are not seized, is a matter which is squarely covered by Rule 67(9). 12. We are not also impressed by the cont ..... X X X X Extracts X X X X X X X X Extracts X X X X
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