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TMI Blog1994 (5) TMI 254X X X X Extracts X X X X X X X X Extracts X X X X ..... itself along with the account books and stock registers. The petitioner is said to have produced the relevant account books and other documents before the Excise and Taxation Officer and prayed for release of the goods, but respondent No. 2 is said to have refused to release the goods. Petitioner has alleged that actions are being taken against it on account of personal ill-will and prejudice of respondent No. 3, Shri Avtar Singh, Director (Enforcement), Punjab. It has been alleged that respondent No. 3 arranged raid on the business premises of the petitioner. Account books of this petitioner's business were taken away and the same were released only on the basis of the order passed by this Court. On account of the filing of the petition by the petitioner, respondent No. 3 has started a more vindictive attitude. He has instructed various check-posts to detain the trucks carrying goods of the petitioner and on the basis of the instructions issued by respondent No. 3, as many as 45 trucks of the petitioner have been detained at various check-posts. Further plea of the petitioner is that the truck carrying goods of the petitioner had documents relating to vehicle log books, bill of sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by it have not been rejected by the Excise and Taxation Department. Shri D.S. Brar, learned counsel for the petitioner, has argued that the petitioner has fulfilled the statutory requirements enumerated in section 14-B inasmuch as the goods vehicle was having a trip sheet/log book, a delivery note containing particulars prescribed in form ST-24 and the same had been produced before the officer-in-charge of the check-post, and, therefore, there was no occasion for respondent No. 2 to have detained or seized the goods under section 14-B(6) of the Act. Shri Brar argued that the officer-in-charge of the check-post or the barrier could have taken action only after objective application of mind and only when he suspected that the goods in transport were meant for trade and were not covered by proper and genuine documents, as mentioned in section 14-B(2). By pointing out to the documents available on the record of the writ petition, Shri Brar argued that the entire action taken by respondents Nos. 2 and 3 shows patent malice on their part, He submitted that the delivery note which was being carried by the person in-charge of the goods vehicle (truck) was in accordance with form ST-24, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. It also empowers such an officer to detain the goods and the vehicle and submit the case for taking further action, which may ultimately lead to the imposition of penalty under sub-section (7) of section 14-B. The vires of section 14-B has been upheld by a Full Bench of this Court in Mool Chand Chuni Lal v. Shri Manmohan Singh, Assistant Excise and Taxation Officer, Octroi, In-charge, Shambhu Barrier, District Patiala [1977] 40 STC 238. While upholding the vires of section 14-B, a five-Judge Bench of this Court observed: "The prevention of evasion of sales tax is a power incidental or ancillary to the levy of sales tax and falls within entry 54 of List II of the Seventh Schedule to the Constitution. Section 14-B(7), which provides for detention of goods and levy of penalty if there has been an attempt to evade the tax due under the Act, cannot, therefore, be said to be without constitutional sanction. There is also no repugnancy between the provision for levy of penalty under section 14-B(7) when an attempt to evade the tax is discovered and the general scheme of the Act which provides for the levy of tax at the point of first sale within the State. The amended section 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or that the person transporting the goods is attempting to evade payment of tax due under this Act, he may, for reasons to be recorded in writing and after hearing the said person, order the unloading and detention of the goods for such period as may reasonably be necessary and shall allow the same to be transported only on the owner of goods or his representative or the driver or other person in-charge of the goods vehicle or vessel on behalf of the owner of the goods, furnishing to his satisfaction a security or (cash security or bank guarantee or crossed-bank draft) for securing the amount of tax in the prescribed form and manner, for an amount not exceeding one thousand rupees or twenty per centum of the value of the goods, whichever is greater: Provided that where any goods are detained a report shall be made immediately and in any case within twenty-four hours of the detention of the goods by the officer detaining the goods to the (Assistant Excise and Taxation Commissioner in-charge of the district) seeking the latter's permission of the detention of the goods for a period exceeding twenty-four hours, as and when so required, and if no intimation to the contrary is receive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in sixty days from the date of communication of the order appealed against, or such longer period as the appellate authority may allow, for reasons to be recorded in writing. (5) No appeal shall be entertained by an appellate authority unless such appeal is accompanied by satisfactory proof of the payment of the tax or of the penalty, if any, imposed or of both as the case may be: Provided that if such authority is satisfied that the dealer is unable to pay the tax assessed or the penalty, if any, imposed or both, he may, for reasons to be recorded in writing, entertain an appeal without the tax or penalty or both having been paid or after part payment of such tax or penalty or both. (6) Subject to such rules of procedure as may be prescribed, an appellate authority may pass such order on appeal as it deems to be just and proper." A comprehensive reading of the two provisions shows that power has been conferred on the officer-in-charge of the check-post or barrier to order unloading and detention of the goods and further empowers him to direct the production of proper and genuine documents. It further empowers the competent authority to impose penalty where it is found that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d: "In the instant case against the order of assessment made by the Sales Tax Officer under the Orissa Sales Tax Act the petitioners-assessees, can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the prescribed authority under sub-section (1) of section 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under sub-section (3) of section 23, and then ask for a case to be stated upon a question of law for the opinion of the High Court under section 24. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under article 226 of the Constitution. It is now well-recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of." In Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd. AIR 1985 SC 330; [1985] 154 ITR 172 (SC); [1985] 58 Comp Cas 145 (SC) thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation and it is a pretence to say that avoidance of taxation is not unethical and that it stands on no less a moral plane than honest payment of taxation. The proper way to construe a taxing statute, while considering a device to avoid tax, is not to ask whether the provisions should be construed literally or liberally nor whether the transaction is not unreal and not prohibited by the statute, but whether the transaction is a device to avoid tax and whether the transaction is such that the judicial process may accord its approval to it. It is neither fair nor desirable to expect the Legislature to intervene and take care of every device and scheme to avoid taxation. It is up to the court to take stock to determine the nature of the new and sophisticated legal devices to avoid tax and consider whether the situation created by the devices could be related to the existing legislation with the aid of 'emerging' techniques of interpretation to expose the devices for what they really are and to refuse to give judicial benediction." We have referred to this decision only with a view to emphasise that when steps are taken by the State authorities for checking the evasion of tax, the cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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