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TMI Blog2010 (10) TMI 966X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Additional Chief Standing Counsel for the respondents. The petitioner is a registered dealer doing business, inter alia, of purchasing commission agency of essential oils. During the relevant period, the petitioner entered into a written composite agreement with M/s. Jindal Drugs Ltd., Gangyal, Jammu, for purchase and dispatch of 1332 MT mentha oil on their behalf on commission basis for advances made by the ex-U.P. principal by bank transfer. Actual expenses and commission were to be charged by the petitioner and the ex-U.P. principal was to provide form F for the transaction. The registration certificate and the agreement with ex-U.P. principal have been brought on record. The business of purchasing commission agency stands accepted by the assessing authority since its inception on November 9, 2005 till 2008-09 after detailed examination of the nature of transaction and books of account. The assessment orders of the previous years reflecting the aforesaid position have been brought on record. The petitioner purchases mentha oil from the farmers on behalf of ex-U.P. principal and dispatch as against statutory forms 6R, 9R and gate pass of mandi samiti. Mandi fee at the ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on the directives of the Additional Commissioner, Commercial Tax, Grade I, Lucknow Zone, which does not show any reason to believe that the goods were not accounted for by the dealer in his books of account maintained in the ordinary course of business or there was any undervaluation of more than 50 per cent, and also that the second detention memo was based on absolutely incorrect facts, but the prayer for release of goods was not accepted and a show-cause notice dated July 30, 2010 was issued. In show-cause notice, it was stated that the goods which were being transported are not the same as purchased against form 6R mentioned in the transfer invoice. This inference was drawn for the following reasons: (a) The test report of the percentage of menthol in the mentha oil obtained from the random sample from 10 drums is almost similar. (b) The inspection of the 6R shows that names of different farmers/ sellers have been written in the same manner. (c) The purchases on July 20, 2010 have been made from 38 persons which is not possible in one day. (d) There is difference in the entries of transfer invoice and form 9R as shown below: Sl. No. Entries in transfer Entries in 9R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seizure and the impugned order being wholly without jurisdiction, the petitioner cannot be required to wait for assessment proceedings, for delivery of goods and in such a situation, the writ petition under article 226 of the Constitution would be maintainable. On merits, learned counsel for the petitioner again emphasised that the grounds of detention and seizure cannot be attributed to any of the conditions mentioned in section 48(2) of the Act, which permits seizure when the goods are not properly accounted for by any dealer in his accounts, registers or other documents maintained in the course of his business. The submission is that the goods mentioned in the transfer invoice and form 6R were the same and there being no anomaly, the same could not have been seized on the ground that they were not accounted for by the dealer in his account books. So far the plea of alternative remedy available to the petitioner is concerned, suffice would be to mention that no appeal would lie under the Act against the order of seizure. Further, in a case where the order passed by the authority is wholly without jurisdiction and if such an order affects the rights of petitioner adversely, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... properly or that goods under the consignment were different from the one mentioned in forms 6R and 9R. Besides, in view of the circulars issued by the Commissioner of Sales Tax and also in view of the fact that the goods were accompanied by relevant documents, namely, prescribed transfer challan dated July 20, 2010 containing all the details of goods, statutory form prescribed for transport of goods, mandi gate pass dated July 20, 2010, mandi 9R dated July 20, 2010 and GR dated July 20, 2010 along with the copy of agreement with ex-U.P. principal for purchase and dispatch of goods, they could neither have been detained nor seized. The question whether it was an inter-State sale or intra-State sale, obviously cannot be decided by the mobile squad and it is for the assessing authority to record a finding on the aforesaid issue during the course of assessment. The learned counsel for the petitioner also relied upon various interim orders passed by this court in different writ petitions dealing with the same issue. In one of the petitions, i.e., Writ Petition No. 5624 (M/B) of 2006 in re: Rapti Commission Agency v. State of U.P., the court also took into consideration the plea that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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