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TMI Blog2006 (6) TMI 487X X X X Extracts X X X X X X X X Extracts X X X X ..... ps belonging to the petitioner are sold by the consignment agent. It is the further case of the petitioner that it remains the owner of the scrap until the same is sold by the agents which is sent to the consignment agent through the transporter in trucks. According to the petitioner the Commissioner of Taxes initially, vide order dated February 4, 1995 directed the Superintendent of Taxes to realise security at the check gate at Rs. 20,000 per truck for non-ferrous scraps and therefore, vide general order dated May 5, 1995 directed all concerned to deposit the security money at different rates in respect of different materials in advance by bank draft before the vehicles are allowed to cross the check-post, which according to the petitioner are beyond the power of the Commissioner of Taxes, Assam. The contention of the petitioner is that the Commissioner of Taxes under the provision of the 1993 Act has no power and authority to direct deposit of such security, that too without following the procedure laid down for imposing such security. The petitioner, therefore has filed the present writ petition challenging such action on the part of the Commissioner of Taxes, Assam. I ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmits that the action on the part of the respondents may be declared as illegal. The learned counsel in support of his contentions has placed reliance on two decisions of this court, i.e., Lallamookh Tea Company (P) Ltd. v. Commissioner of Taxes reported in [1995] 98 STC 531; [1993] 1 GLR 467 and Pradip Kumar Sarawgi Sons (HUF) v. Commissioner of Taxes reported in [2004] 137 STC 318; [2003] 3 GLR 225. Mr. Choudhury, learned Additional Advocate-General appearing for the respondents, on the other hand, has submitted that it cannot be said that the authority has no power to ask the dealer to furnish security under the provision of the 1956 Act as well as under the 1993 Act. Such power to direct the dealer to furnish the security is also available under the provisions of the Assam Value Added Tax Act, 2003 (for short, the 2003 Act ). According to learned counsel, though this court in the case of Pradip Kumar Sarawgi [2004] 137 STC 318; [2003] 3 GLR 225, set aside the orders of the Commissioner of Taxes, dated February 4, 1995 and May 5, 1995 whereby direction was issued to deposit the security amount in advance by bank draft before the vehicles are allowed to cross the check gate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner to furnish any security or imposing any conditions for issuance of such certificate, therefore, the provision of sub-section (2A) of section 7 is not attracted in the present case. Sub-section (3A) of section 7 of the 1956 Act, empowers the authority, granting a certificate of registration, to pass an order in writing and for reasons to be recorded therein, requiring the registered dealer to whom such certificate has been granted, to furnish within such time as may be specified in the order and in the prescribed manner, such security or, if the dealer has already furnished any security in pursuance of an order under sub-section (3A) or sub-section (2A), such additional security, as may be specified in the order for all or any of the purposes mentioned in the said sub-section. Sub-section (3B) provides that no dealer shall be required to furnish any security or additional security unless he has been given an opportunity of being heard. Sub-section (3BB) also provides that the amount of security which the dealer may be required to furnish under subsection (2A) or sub-section (3A) or the aggregate of the amount of such security and the amount of additional security which he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in their affidavit-in-opposition or by producing the record that the notices were issued to the petitioner before passing the order and also the reasons for passing the order were recorded. It appears from the order passed by the Commissioner that those were general in nature and not in respect of individual dealers. The provision of the 1956 Act, as discussed above, does not contemplate passing of a general order. The order requiring furnishing of security is required to be passed in case of individual dealer by recording reasons and that too after giving the dealer an opportunity of being heard, which has not been done in the instant case. A single Bench of this court in Pradip Kumar Sarawgi [2004] 137 STC 318; [2003] 3 GLR 225, has already quashed and set aside the orders of Commissioner of Taxes dated February 4, 1995 and May 5, 1995 by prohibiting the authority from demanding and collecting any security deposit on the strength of such orders at the check-post, under the provision of the 1956 Act as well as the 1993 Act. Another single Bench of this court in Lallamookh Tea Company [1995] 98 STC 531; [1993] 1 GLR 467, has also held that notice demanding furnishing of secu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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