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TMI Blog2007 (12) TMI 427X X X X Extracts X X X X X X X X Extracts X X X X ..... he result, this writ petition is disposed of directing the respondent to pay to the petitioner the surplus amount if any that remains after the subject goods are sold and the tax liability for which it had been detained is adjusted - Writ Petition No. 16856 of 2006 - - - Dated:- 3-12-2007 - SHYLENDRA KUMAR D.V. , J. ORDER:- D.V. SHYLENDRA KUMAR J. Subject-matter of this writ petition is non-release of certain goods, which were seized by the officials of the Commercial Taxes Department, while the goods were in transit. Writ petitioner is a person claiming to be the manager of M/s. Shree Vinayak Roadways, Isanpur-Narol Highway, Isanpur, Ahmedabad, who has sought for issue of a writ of mandamus to direct the respondent to release forthwith the goods that were attached by the respondent under the proceedings dated July 24, 2004 (annexure C). Writ petitioner has also sought for costs of the writ petition. The petition is presented on the premise that the goods in question were attached for the purpose of realising a sum of Rs. 1,52,466 levied by way of penalty under section 53(12) of the Karnataka Value Added Tax Act, 2003 (for short, the Act ), as it was found tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the pendency of the writ petition was that the order of the Joint Commissioner has been made subject-matter of revision by the Commissioner of Commercial Taxes, in exercise of his power under section 64 of the Act, and pending consideration and disposal of this revision, the petitioner cannot seek release of goods, etc. This court has taken serious view of such exercise of power by the Commissioner. Even when this matter was being considered by this court, the Commissioner has subsequently dropped the proceedings under section 64 of the Act, but the respondent, nevertheless, has continued its stand that the goods cannot be released, as the petitioner is not the person who can legally put forth a claim towards the goods; that the goods if had been sold as indicated by the consignor becomes the property of the consignee and the consignee not forthcoming before the court, for claiming the goods, the petitioner cannot seek release of goods in his favour and therefore a mandamus should not be issued; that at any rate, in the light of the stand taken by the consignor that he has no claim to get back the goods, as it had already been sold to the consignee, the department can defi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the department by the consignor, is now under attachment for realisation of this tax amount and therefore, the writ of mandamus as prayed for cannot be issued. Learned Additional Government Advocate also submitted that the bona fides of the petitioner, viz., Ramawatar Pareek, who has sworn to the affidavit in support of the writ petition and who had appeared before this court as on September 26, 2007, is also in doubt as the said person is not in any way connected with the case though he might have paid the penalty amount on behalf of the consignor or the consignee. It is therefore, submitted that a mandamus at the instance of such a person cannot be issued. 3.. Sri. Koushik, learned counsel for the petitioner, on the other hand, submits that this court, in fact, was on the verge of issuing a mandamus and it was only on the question of awarding costs in favour of the petitioner, the matter had been adjourned, but due to the subsequent development of the Commissioner exercising suo motu revisional powers under section 64 of the Act, the matter became further complicated and as the Commissioner himself has subsequently withdrawn the revisional order, it is a fit case where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at even the transport company is not prepared to own up the petitioner, as its authorised representative for the purpose of transactions nor the consignor is prepared to accept that the petitioner is their representative and that the consignment being still in transit remained in the name of a fictitious person, there is no way the petitioner can seek release of the goods even after realising the tax due and payable by the consignee for which purpose the Government can still retain the goods and therefore seeks dismissal of the writ petition. The learned Additional Government Advocate would also seek permission of the court for realising such tax due by the consignee which was the tax amount due for the months of April and May 2006, in terms of the returns that had been filed by the person and even after that it is not open to the petitioner to seek return of the goods or the balance amount. On the other hand, learned counsel for the petitioner would submit that it was the petitioner who had sought for release of the goods; that the petitioner has been prosecuting the matter diligently all these years and the petitioner had in fact appeared before the court in person as per t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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