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TMI Blog2013 (12) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... eing delivered to the buyer, the goods could not have been detained by the Check Post Officer for realization of the tax assessed by it against the seller - The amount of tax against M/s. Shri Hari Enterprises was crystalized and became payable after the sale of the goods was already complete - The action of the revenue in not releasing the goods in favour of the petitioner / transporter is violative of Section 57 (11) of the Act – Revenue is directed to release the tankers with goods – Decided in favour of Petitioner. - Writ Petition No.12488/2013 - - - Dated:- 19-11-2013 - Shri Shantanu Kemkar And Shri Mool Chand Garg, JJ. For the Petitioner : Shri Sumit Nema, learned counsel For the Respondent : Ms. Mini Ravindran, learned Deputy Government ORDER (Passed on this 19th day of November, 2013) Per Shantanu Kemkar, J. The petitioner engaged in the business of goods transport was carrying goods (Palm Oil) of M/s. Shri Hari Enterprises (seller of the goods) for being delivered to M/s. Mahajan Traders (buyer) in three tankers. On 13.08.2013 during transportation, the tankers along with the goods were stopped by the Commercial Tax Officer, Anti Evasion Bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s. Hari Traders has already sold the goods and therefore, for its alleged tax dues the goods in question cannot be detained. In spite of this, when the goods were not released, the petitioner had filed this writ petition under Article 226 of the Constitution of India. 4. The case of the petitioner is that the action of the respondents in detaining the goods even after receiving from the petitioner, the amount of penalty imposed upon it, is mala fide and illegal. According to the petitioner, Section 57 (11) of the Act provides for release of the goods in favour of the transporter on payment of penalty imposed. The petitioner submits that for the alleged recovery of tax from the seller of the goods, who had already parted with the ownership of the goods, the petitioner cannot be deprived the benefit of Section 57 (11) of the Act. It is also the case of the petitioner that in case goods are not released in its favour, then it will not be possible for the petitioner to recover the penalty amount and cost of transportation from the concerned parties; resulting in irreparable financial loss to it. 5. The respondents have filed return and have stated that the petitioner was transpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... premises, as may be notified in the official gazette and an officer, not below the rank of Assistant Commercial Tax Officer shall be in-charge of the check post (hereinafter referred to as the check post officer) and he shall be assisted by other category of officials: Provided that the Commissioner shall not set up a check post or erect a barrier for a period exceeding six months at a time. (2) The driver or the person in-charge of a vehicle or carrier or of goods in movement (hereinafter referred to as the transporter) shall (a) carry with him an invoice, bill or challan or any other document and prescribed declaration forms issued by the consignor or consignee of the goods in movement and challan, bilties or any other document issued by the transporter; (b) stop the vehicle or carrier at every check-post or bring and stop the vehicle or carrier at the nearest check-post, while entering and leaving the limits of the State, set up under sub-section (1); (c) furnish all the documents including prescribed declaration forms relating to the goods before the check post officer; (d) give all the information relating to the goods ; and (e) allow the inspection of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , during the pendency of the proceeding if adequate security in the form of cash security or irrevocable bank guarantee of the amount equal to the penalty leviable under subsection (8) or (10) is furnished. (7) The officer empowered under sub-section (5), who stops the vehicle or carrier, may direct the transporter to take the vehicle or carrier along with the goods and the documents to the nearest check post or any Commercial Tax Office to be named by him and stop it and keep it stationary there till such time as may be required for action in accordance with the provisions of this section, and the officer shall reach such check post or such Commercial Tax Office at the earliest and immediately on reaching there initiate action for seizure of goods or the vehicle or carrier along with the goods and impose penalty in accordance with the provisions of this section. (8) The check post officer or the officer empowered under sub-section (5), after having given the transporter a reasonable opportunity of being heard and after having held such enquiry as he may deem fit, shall,- (i) release the goods or the vehicle or carrier along with the goods in favour of the transporter, if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay be prescribed and apply the sale proceeds thereof towards the penalty and refund the balance, if any, to the transporter and if the sale proceeds of the goods are not sufficient to cover the amount of penalty or the goods can not be sold despite the efforts made for the same, the said officer shall cause the vehicle or carrier to be sold in the aforesaid manner and apply the sale proceeds thereof towards the balance of penalty and refund the balance of such sale proceeds, if any, to the transporter. (13) Where the officer seizing the goods, at any time during the pendency of the proceeding under subsection (8) or (10), is of the opinion that the goods are subject to speedy and natural decay or when the expenses of keeping them in custody are likely to exceed their value, he may cause them to be sold in such manner as may be prescribed without waiting for the completion of the proceedings relating to the imposition of penalty and keep the sale proceeds thereof in deposit till the completion of said proceedings and the amount so kept in deposit shall be applied towards such penalty, if any, as may be imposed and the balance, if any, shall be refunded to the transporter accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evealed that after the order imposing the penalty against the petitioner was passed on 12.09.2013. The petitioner had opted to pay a lump sum amount as per Section 57 (17) of the Act and paid the penalty amount on 20.09.2013. In the circumstances, when once the petitioner had paid the penalty imposed upon it by the Check Post Officer, in our considered view, it was incumbent upon the Check Post Officer to have exercised its power under Section 57 (11) of the Act to release the goods seized by it in favour of the transporter. 9. As regards the alleged dues of tax against the seller from the documents filed by the parties, it is revealed that before expiry of period of Notice of Demand issued to seller M/s. Shri Hari Enterprises, as required under Section 27 of the Act read with Rule 41 of the MP VAT Rules, 2006 (for short, Rules), the goods were already sold by M/s. Shri Hari Enterprises to M/s. Mahajan Traders and its ownership no more remained with M/s. Shri Hari Enterprises. Thus, in our considered view, the seller M/s. Shri Hari Enterprises having already received the price of the goods and having handed over the goods to the petitioner / transporter for being delivered to th ..... 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