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TMI Blog2004 (11) TMI 546X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that he effected inter-State purchases of laminated sheets from one M/s. Durloan Ltd., in Gujarat and inter-State purchase was covered by relevant documents, viz, invoice issued by the consignor, lorry receipt and advance way bill of the petitioner and the said consignment was being carried in goods vehicle bearing No. AP 9 V 1576 of Bombay Andhra Transport Organisation. While the vehicle was carrying the goods during the course of inter-State trade or commerce in transit, it was inspected on July 26, 2004. The inspection, according to the petitioner, revealed that transportation of laminated sheets was covered by Invoice No. 153, dated July 22, 2004 issued by the manufacturer. According to the instructions issued by the Commissioner of Commercial Taxes through a circular, every dealer who was purchasing laminated sheets from outside the State was supposed to issue advance way bills and accordingly the consignment was covered by way bill. According to the petitioner, no irregularities or defects or omission were found by the inspecting authorities in regard to the transportation of the goods. However, the respondent issued a detention notice on July 27, 2004. It is submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 of the State Act clearly prohibits the applicability of the provisions of the State Act to inter-State purchases or sales, as the case may be. It is also contended that the authorities of the department have no power to detain the goods and the provisions of the Central Act cannot be invoked by the authorities of the department in exercise of power under the State Act as the inter-State sale cannot be interfered with by the authorities under the State Act. In these circumstances the writ petition was filed and a direction was sought that the respondent should release the goods, i.e., laminated sheets to the petitioner. Counter-affidavit was filed by the respondent-Deputy Commercial Tax Officer, in which he submitted that while he was discharging his official duties duly undertaking the vehicular traffic check on July 27, 2004 at M.J. Market, near Osmanganj, Hyderabad, he inspected a lorry bearing o. AP 9 V 1576 which contained laminated sheets. The driver of the vehicle was asked to produce the documents relating to the consignment in question. The driver produced the documents. The documents revealed that the price shown for the goods, i.e., laminated sheets was far below the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e department to purchase these goods from the petitioner duly paying the price he desired. Accordingly the petitioner was requested to submit his quotation indicating the price at which he would be prepared to sell these goods normally to any other customer." It is also submitted in the counter that the petitioner filed a letter on July 29, 2004 quoting a price of Rs. 220 per laminated sheet excluding sales tax at 12 per cent. It is submitted that the petitioner having given the quotation has committed himself to sell the goods to the department at the rate indicated in the quotation. In the normal trade practice every dealer who issues a quotation for the sale of goods would readily come forward to effect sale, if the quotation given by him is accepted by the purchaser. However in the present case, for obvious reasons, the petitioner went back on the quotation given by him as he knew that the price quoted by him was far below the prevailing market price. It is further submitted that the petitioner purchased the goods, according to the papers, at Rs. 180 per laminated sheet of 8 x 4 having a thickness of 1 mm and he quoted the price of Rs. 220. The petitioner now could not c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o believe that any goods of a fair market value exceeding five thousand rupees have been sold or purchased by a dealer, to or from another dealer or person, as the same may be, for a consideration which is less than fair market price of the goods and that consideration for such sale or purchase as agreed to between the parties has not been truly stated in the invoice or delivery challan or any other document relating thereto, with the object of facilitating the reduction or evasion of the tax payable under this Act, the authority prescribed may, subject to the provisions of this section initiate proceedings for the acquisition of such goods. (2) The powers conferred under sub-section (1) shall be exercised by the prescribed authority in respect of goods sold or purchased which, are in transit or in the possession of the seller or buyer or their agents. . . . " Sub-section (2) of section 28A specifically empowers the authorities to exercise the power under sub-section (1) in respect of goods sold or purchased which are in transit or in the possession of the seller or buyer or their agents. Now coming to the judgments relied on by the learned counsel for the petitioner, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmary enquiry as per the relevant provisions contained in section 29 of the Act read with rules 46 and 47 of the Andhra Pradesh General Sales Tax Rules, 1957. We make it clear that tax collection at the check-post cannot be resorted to on the presumption that the goods are likely to be sold clandestinely and the tax will be evaded by the petitioners. If the poultry feed or poultry feed ingredients are sold clandestinely and the taxable turnover is suppressed by the dealers, the sales tax authorities are not powerless to take necessary steps to make best judgment assessment and to levy penalties. But, an anticipatory collection of tax on the presumption that the dealers are likely to resort to clandestine sales at a later point of time is not warranted under the provisions of the Act." The learned counsel for the petitioner also relied on a judgment reported in Check Post Officer, Coimbatore v. K.P. Abdulla and Bros. [1971] 27 STC 1 (SC). Even in this case the Supreme Court upheld the power of the authorities under the Act to confiscate the goods carried in vehicle without prescribed documents. This judgment is also not relevant for the purpose of the present case. Even other ..... X X X X Extracts X X X X X X X X Extracts X X X X
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