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TMI Blog2005 (5) TMI 622X X X X Extracts X X X X X X X X Extracts X X X X ..... passed on the person-in-charge of the vehicles for detaining the vehicles at the sales tax check-post at Kannur, Mangalore, Dakshina Kannada, issued by the respondent No. 1-Commercial Tax Officer. The endorsements are one purporting to be issued in exercise of the powers conferred under section 28-A(3B) of the Karnataka Sales Tax Act, 1957, as it is claimed that in the opinion of the officer, it was necessary for verification of the accuracy of the particulars furnished in respect of the supporting documents which were accompanying the goods and which were scrutinised at the check-post by the authorised officer of the Commercial Taxes Department. These endorsements dated January 14, 2005 were as a follow up action of an earlier endorsement dated December 30, 2004, the date on which the vehicles were checked and detained and the petitioner had been called upon to produce the particulars of sales tax registration certificate, monthly returns for the month of November 2004, etc., within a period of 10 days and further that pending production of such particulars, the vehicles in question were to be detained at the check-post at the risk of the petitioner itself. The subsequent endorse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot extend the period of detention at the behest of other officers or higher officers; that the opinion as to the necessity for detaining the vehicles should be of the officer so detaining the vehicles and not that of any other officer. Mr. Kamath also submits that the action is also not supported by the very provisions under which the authorities have detained the vehicles; that even after the expiry of the period of one week from the endorsements dated January 14, 2005 then also the vehicles and the goods have not been released and that the detention is being extended indefinitely without any basis or justification. 6.. Notices had been issued to the respondents. Smt. Niloufer Akbar, learned Government Pleader, has appeared on behalf of the respondents. Statement of Objections has also been filed on behalf of the respondents. 7.. What is principally urged by the learned Government Pleader is that the action taken by the respondents is one as contemplated under section 28-A(3B) of the Act; that the authorities have entertained a genuine and bona fide doubt as to whether the petitioner who has made several transactions of purchase of "bitumen" from M/s. Hindustan Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever paid any taxes prior to such enquiry by the respondents, has subsequent to such enquiry paid a lumpsum amount of Rs. 50,000 towards tax liability in respect of turnover in that State whereas it had earlier filed a "nil" return for the very month and such revision in returns and indication of tax liability therein is only after the respondents had started scrutinising the transaction; this in itself is indicative that all was not well with the transactions of the petitioner and as the respondents are still to ascertain the full facts and possible violations in respect of earlier inter-State sale transactions, the authorities have detained the vehicles and the goods in exercise of their powers conferred under section 28-A(3B) of the Karnataka Sales Tax Act, 1957. Therefore, the action does not call for interference at this stage and the writ petitions are to be dismissed. However, learned Government Pleader hastens to add that that the violation they are apprehending is in respect of the very transaction and in respect of the goods under transit through the vehicles under detention. 11.. The provisions of section 28-A(3B) reads as under: "28-A. Establishment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ona fide suspect that the petitioner had not concluded the transaction as an inter-State transaction, but had aborted the same and could have indulged in local sale of the goods covered under the transaction. 13.. Learned Government Pleader has drawn my attention to the provisions of sub-section (4) of section 28-A of the Act which reads as under: "28-A. Establishment of Check-post or barrier and inspection of goods while in transit.--...........(4) The officer-in-charge of a check-post or a barrier or any other officer not below the rank of a Commercial Tax Inspector and not higher in rank than a Deputy Commissioner of Commercial Taxes, in respect of any contravention of or non-compliance with the provisions of sub-sections (2) and (3) or (3A) or (3B), for which sufficient cause is not furnished, levy a penalty, which,-- (a) shall not be less than the amount of tax leviable but shall not exceed one and half of the amount of tax leviable in respect of the goods under transport in contravention of clause (d) or (e) of subsection (2), if a dealer registered under the Act accepts that he is the consignor or consignee of the goods, (b) in cases other than those falling under c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detected or noticed any contravention or non-compliance with the provisions of sub-section (2), (3), (3A) or (3B) and the petitioner on being put on notice is still unable to explain the violation, then alone they can levy penalty. Obviously, it is in respect of the very transaction. That is not at all the case of the respondents in these writ petitions. Assuming that there was any violation or contravention or non-compliance of any legal provisions in respect of the earlier transactions, section 28-A(4) does not enable the respondents to levy penalty in respect of those transactions. Learned Government Pleader is unable to point out any other provision assuming that during the contemplated action under such other provision also, provisions of section 28-A(3B) enables the respondents to detain the goods and the vehicles in the present transaction. 16.. The endorsements at annexures E & F apart from suffering from defect pointed out by learned counsel for the petitioner namely that detention is at the behest of some other officer and not due to the formation of opinion by the officer detaining it, the very basis for such detention appears to be very fragile; that if the action as c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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