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TMI Blog2014 (4) TMI 878X X X X Extracts X X X X X X X X Extracts X X X X ..... of UP - It will be extremely unjust for owner of the goods to apply for release of the goods in the State of UP - The Legislature has used the words "any person aggrieved" and which would include the driver or the transporter of the vehicle - No need to go into the merit of the seizure inasmuch we find that the petitioner has a right to make a representation under the proviso to 47(7) for release of the goods, which have been seized by the respondents and if he is still aggrieved to file an appeal u/s 57 in Tribunal - The amendment application is allowed - In view of the order proposed to be passed, no reply is required to be given by the State respondents to the amended paragraphs – Decided in favour of Assessee. - Writ Tax No. - 797 of 2013 - - - Dated:- 24-9-2013 - Hon'ble Sunil Ambwani And Hon'ble Surya Prakash Kesarwani,JJ. For the Petitioner : Aloke Kumar For the Respondent : C.S.C. ORDER 1. We have heard Shri Aloke Kumar, learned counsel appearing for the petitioners. Shri C.B. Tripathi, Standing Counsel appears for the State respondents. 2. The amendment application is allowed. However, in view of the order proposed to be passed, no reply is required t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eturn the papers (taken in possession from the drivers of the vehicle) relating to the goods in question. (iv) Issue a suitable writ, order or direction as this Hon'ble Court may deem fit and proper under the facts and circumstances of the case. (iv) Award the cost of the petition to the petitioner." 5. On 18.8.2013 during the course of transportation of goods from Delhi to Uttrakhand, immediately on its entry into the State of UP on National Highway, the vehicle in question was intercepted by a team of Commercial Tax authorities headed by the respondent nos. 2 and 3. It is stated that even after presentation of papers relating to goods i.e. invoices, G.R./bilti and transit declaration form by the driver of the vehicle, the vehicles were directed to be detained in the office of respondent no.2 on 18.8.2013 without questioning the genuineness of the documents accompanying the goods. 6. It is submitted that on 22.8.2013 the goods were detained on the grounds, which are given in the show cause notice dated 7.9.2013, that on the physical verification it was found that the goods laden in the vehicles were different than the goods declared in the documents. The Tin number of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for release of the goods. The proviso is in the nature of remedy available to a party insofar as the security amount to be furnished in respect of the goods which have been seized as the officers under that proviso can dispense with deposit of cash. 14. The next relevant provision is Section 55 of the U.P. VAT Act, which provides for appeal against an order made by the Assessing Authority other than an order mentioned in sub-section (7) of Section 48. Assuming without finally deciding, in view of the incorporation of the machinery provisions of Section 48 into Section 50, an appeal under Section 55 (1) would not lie in respect of an order made under Section 48 (7), but insofar as revision is concerned, under Section 56 (4) of the U.P. VAT Act, a person aggrieved by an order, against which an appeal does not lie under Section 55, is entitled to file an application for revision. We may also refer to Section 57 (4) of the U.P. VAT Act, which reads as under:- "57. Tribunal.- (1) ... ... (4)Any person aggrieved by an order passed under section 42, section 55, section 56, a decision under section 59 or a direction under the proviso of sub-section (7) of section 48 may, within nine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orter as well. Section 52 of the Act also uses the same words, namely the person incharge of the vehicle to carry such documents as may be prescribed failing which it shall be presumed that the goods carried thereby are meant for sale within the State. 12. Section 55 provides for penalties. Sub-section (1) (15) (iv) provides for penalty at 40% of the value of the goods on a person being a transporter or hirer of a vehicle, who prepares a goods receipt by showing false destination of goods outside the State. 13. Section 23 (2) and 39 (1) of the Sales of Goods Act, 1930 provide as follows:- "23 Sale of unascertained goods and appropriation-(1).... (2) Delivery to carrier- Where, in pursuance of the contract, the seller delivers the goods to the buyer or to a carrier or other bailee (whether named by the buyer or not) for the purpose of transmission to the buyer, and does not reserve the right of disposal, he is deemed to have unconditionally appropriated the goods to the contract. 39. Delivery to carrier or wharfinger.- (1) Where, in pursuance of a contract of sale, the seller is authorised or required to send the goods to the buyer, delivery of the goods to a carrier, whet ..... X X X X Extracts X X X X X X X X Extracts X X X X
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