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TMI Blog1994 (12) TMI 304X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 per cent has been charged as 60 per cent of the tax is exempt as per eligibility certificate granted to the consignor being a new unit. When the goods were in transit, they were checked by the Assistant Commercial Taxes Officer (Flying Squad)on August 31, 1994 and he brought the truck to Kar Bhawan for enquiry under section 23-D of the Act. The goods were seized and the delivery thereof was given to the petitioner on security on August 31, 1994 itself. The Deputy Commissioner (Anti-Evasion), Commercial Taxes Department issued a notice to the petitioner under section 23-D of the Act read with rules 55 and 63B of the Rules to appear before him on September 24, 1994. In the meantime the enquiry was made by the Assistant Commercial Taxes Officer (Anti-Evasion) and according to his report it was found that it is a matter of underbilling and the value of the goods has not been correctly stated in the bill. The notice was issued by the Deputy Commissioner (Anti-Evasion) on the proposal sent by the Assistant Commercial Taxes Officer for granting sanction under section 23-D of the Act to purchase the goods after addition of 10 per cent. A reply to the said notice was submitted and it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to such goods. 2.. The authorised officer exercising the powers under section 23-D shall serve on the owner or the person who is in immediate possession or control of such goods a direction to the effect that he shall not remove, part-with or otherwise deal with, such goods for a period of one month from the receipt of the direction in writing. The owner or a person in immediate possession or control of such goods may give possession to the authorised officer for the safe custody of such goods and obtain a receipt thereof from the authorised officer. 3(i) The authorised officer shall forward the proposal to purchase the goods under section 23-D of the Act to the Deputy Commissioner (Administration) or Deputy Commissioner (AE) having administrative control of his circle or ward or check-post within 24 hours of the service of the order or directions under subrule (2). (ii) The Deputy Commissioner concerned shall on receipt of the proposal and after giving the owner or the person in immediate possession or control of the goods an opportunity of being heard and also after holding such enquiry as he may consider fit, either accept or reject the proposal and serve the order of acce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been given the opportunity. It has further been provided under section 23-D that if the dealer fails or refuses to sell the goods then he shall be liable for penalty. Therefore. if the petitioner, does not want to sell the goods he has the option to make the payment of the penalty of 30 per cent of the offer price. It has further been provided that the penalty shall be imposed and recovered in the manner prescribed in this behalf. The right to purchase the goods under section 23-D of the Act therefore is not absolute right. The object of section 23-D is to prevent evasion of tax which the respondents have found being adopted by underbilling while the goods are imported or received from manufacturer. In a case of underbilling the particulars so far as quantity, etc., are concerned, they are generally shown correctly and the dispute is only with regard to rate. The question as to whether a particular case is of underbilling or not is always a question of fact and has to be decided by taking into consideration the relevant evidence from the seller/ purchaser of the commodity. A question arises that when the respondents are ready to make the payment by increasing the value by 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... providing opportunity to the dealer as to why the said permission or authorisation should not be given. At this stage the dealer has to satisfy the Commissioner or Deputy Commissioner in respect of expenses or other factors by which the permission or authorisation can be refused. 5.. In State of Kerala v. K.T. Shaduli Yusuff [1977] 39 STC 478 it was observed by the apex Court that the principles of natural justice is the genus of which rule of audi alterain partem is a specie. The rule requiring opportunity of hearing is not an inflexible rule having fixed connotation but has variable scope depending on the nature of the inquiry, the frame-work of the law under which it is held, the constitution of the authority holding the enquiry, the nature and character of the rights affected and the consequence flowing from the decision. The provisions of section 23-D of the Act read with rule 63-B(3)(ii) contemplates an opportunity of being heard. The principles of natural jusice which are required to be followed have been duly prescribed in the said rule and as such the sole requirement is to provide an opportunity of hearing and also to hold inquiry. Normally the principles of natural j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y or the purchase has been made in a wholesale according to some scheme or in a situation where one person is closing his business or in a similar circumstances he is in a position to get the goods at the lesser figure it is the object of giving opportunity to explain the circumstances including the production of evidence by the dealer before the Deputy Commissioner (Administration). Normally the order could have been set aside on this very ground that the copy of the enquiry report or the document relied upon has not been furnished to the person whose rights are effected, but as discussed above the rights are not affected as the Deputy Commissioner is paying more than what is mentioned in the bill. The enquiry contemplated under section 23-D for giving the approval for purchase of the goods, therefore, has been followed completely. 6.. The second stage is for levy of penalty if the dealer fails or refuses to sell the goods. In a penal provision the principles of natural justice have to be fully complied with and any document which the respondents want to rely on have to be provided to the petitioner. That stage has not yet come. If the petitioner is not willing to make the sale ..... X X X X Extracts X X X X X X X X Extracts X X X X
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