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TMI Blog2007 (7) TMI 603X X X X Extracts X X X X X X X X Extracts X X X X ..... y seeds, along with the relevant records that were seized. The brief facts of the case, as stated by the plaintiff, are as follows: (a) The plaintiff is a dealer in poppy seeds (kasakasa) and other commodities at Calicut in Kerala State. The plaintiff used to purchase poppy seeds from Gauhati, in the State of Assam and the goods were transported to other places through lorries. Prior to March 12, 1993, the tax levied on poppy seeds, in accordance with serial No. 173 of the First Schedule annexed to the Tamil Nadu General Sales Tax Act, 1959, was eight per cent and the tax was being levied at the point of first sale in the State. From March 12, 1993, the rate of the tax was reduced to five per cent. As per section 44 of the Tamil Nadu General Sales Tax Act, 1959, it was mandatory for the owner, or any person-in-charge of the goods vehicle to carry with him a bill of sale, or delivery note or such other documents, as may be prescribed as well as the goods vehicle record of the trip sheet. The check-post officials have been empowered to inspect the goods while in transit. The plaintiff has purchased 145 bags of poppy seeds weighing 10,000 kilograms, as per Bill Nos. 177, 176 and 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of the officials of the Commercial Tax Department cannot be questioned by way of an appeal or revision, as no such procedure was contemplated under the said Act. Since it is a civil right, the plaintiff has been constrained to file the suits praying for a decree of declaration, to declare the notices, dated March 23, 1993, as illegal and arbitrary and for a mandatory injunction to direct the second respondent to release the seized lorries, along with the consignments of 145 bags of poppy seeds. In the written statement filed on behalf of the defendants, it has been stated that the suits are not maintainable, in view of section 49(2) of the Tamil Nadu General Sales Tax Act, 1959. It is also not maintainable, in view of the specific bar under section 51(a) and (b) of the said Act. Even though there are bills, dated March 12, 1993, in favour of the plaintiff, the transactions of the plaintiff were not admitted to be genuine. The defendants were not admitting the transport practice that was being followed by the carriers of the goods. It was admitted by the defendant as true that the poppy seeds seized under Sl. Nos. 173 of the First Schedule to the Act attracts single point tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ders of Veerappan Chattiram. On an inspection made, on March 22, 1993, in the said premises, it was found that 237 bags of poppy seeds were found to be excess stock. All the poppy seeds which were accounted for, had been purchased from the said trader, namely, Mahavir Traders, Imphal. The relevant documents had revealed that the goods were intended to be delivered at Erode. Thus, it was found that a clandestine attempt had been made by the traders of Shri Jagadamba Traders, Erode, with the active assistance of the plaintiff to avoid payment of sales tax. The defendants, however, had stated that the case of the officials of the Commercial Tax Department are bona fide and legal and therefore, the goods and the lorries cannot be released. The tax and other penal charges would amount to Rs. 31,253. However, two times the tax amount had to be levied as compounding fees, under section 46(1) of the Tamil Nadu General Sales Tax Act, 1959. Thus, the total amount to be paid by the plaintiff was Rs. 93,259, under section 42(8)(b) of the Tamil Nadu General Sales Tax Act. The authorities were empowered to detain the goods in case of tax evasion. Any person objecting to an order, or proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diction to entertain the suit? (2) Whether the suit is maintainable without issuing notice under section 80, C.P.C.? (3) Whether the plaintiff is entitled to the relief of declaration and injunction?" The main contention that had been raised by the defendants in the suits was that the civil court had no jurisdiction to entertain the suits. It was contended on behalf of the defendants in the suits that the notice issued, under exhibit A-2, in the respective suits can be challenged by the plaintiff by filing a revision before the authorities constituted under the Tamil Nadu General Sales Tax Act, 1959, and that the provisions of section 51 of the said Act places an embargo on the civil court from trying such suits. However, sections 31 and 31A of the Tamil Nadu General Sales Tax Act, 1959, lay down the procedure for filing of an appeal before the Appellate Commissioner and Deputy Commissioner, Commercial Taxes Department. However, the said provisions do not apply to the said case, since the notices, under exhibit A-2, in the respective suits had been issued for compounding the offence. Though the proper section was not quoted in exhibit A-2, marked in the respective suits a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven its findings without correctly appreciating the scope of the Tamil Nadu General Sales Tax Act, 1959. Further, the lower appellate court had wrongly reversed the judgments and decrees of the trial court on the ground that the civil court has no jurisdiction as per section 51 of the Act and that the plaintiff is entitled to file only a revision under section 33 of the Act. Since the goods in question were in transit to the State of Kerala, no sale had taken place within the State of Tamil Nadu and therefore, the question of levying sales tax under the Tamil Nadu General Sales Tax Act, 1959, does not arise. Since, section 51 of the Act creates a bar against suits filed to set aside, or modify any assessment, and it does not apply to a suit in which a relief of declaration has been sought for. Since the impugned notice issued on behalf of the Commercial Taxes Department against the plaintiff is arbitrary and illegal and contrary to the provisions of law laid down by the Tamil Nadu General Sales Tax Act, 1959, the plaintiff is entitled to maintain the civil suits in challenging the said notices. Per contra, Mr. Mani Bharathi, the Standing Counsel appearing on behalf of the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X
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