9911796707
TMI Blog2014 (7) TMI 624X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities to initiate penalty proceedings against the appellant, but at the same time, the order for release on furnishing cash security of ₹ 10 lakhs cannot be sustained. Interest of justice would be met in directing the applicant to furnish bank guarantee for the said amount of ₹ 10 lakhs. - in case, the penalty proceedings are not initiated within 15 days, the bank guarantee will cease to be valid thereafter. - Decided partly in favour of assessee. - Commercial Tax Revision No. 400 of 2014 - - - Dated:- 20-6-2014 - Hon'ble Manoj Kumar Gupta,JJ. ORDER 1. Heard counsel for the revisionist and Sri Sahid Kazmi, learned standing counsel for the respondent. Learned standing counsel states that no counter affidavit is required and the matter may be heard finally. 2. The petitioner M/s. Aquatech Pumping Solution is a registered dealer with the Commercial Tax Department at Uttarakhand. It had entered into a sale transaction with Jindal Powers Limited, which is another registered dealer in the State of Chattisgarh for supply of Horizontal Automatic Vacuum Assisted Dry Priming Mine De-watering Heavy Duty Bare Pump, which is a specialised pump for suction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Agra and covering certain distance through the State of Madhya Pradesh, the vehicle will again have to cover a distance of about 100-125 kms. through the State of U.P. and will again exit from Lalitpur into Madhya Pradesh. It is on account of ignorance of the aforesaid fact that the driver of the vehicle could not correctly fill up the TDF and there was no intention of evading any tax. Along with the reply to the show cause notice, another TDF downloaded from the official website of the Commercial Tax Department of the State of U.P. was produced according to which the truck would again enter in the State of U.P. at Ambaway, Jhansi and after passing through Jhansi and Lalitpur, will exit at Masaura, Lalitpur on 05.06.2014. However, the Assistant Commissioner being not satisfied with the explanation furnished by the revisionist, passed an order of seizure in purported exercise of power under section 50 of the Act on the same day i.e. 04.06.2014 and demanded security of 40% of the value of goods amounting to ₹ 10 lakhs on an estimated value of the goods at ₹ 25 lakhs. Aggrieved by the said order, the applicant filed an application under section 48(7) of the Act before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said judgment is reproduced below: - In the era of globalization, geographical and trade barriers have become things of the past. It is for this reason that the department itself had abolished the check posts. The checking of vehicles or goods during transportation may be necessary for promoting the interest of the revenue but practical experience is otherwise and it is common knowledge that such exercise causes hindrance not only in trade and commerce and delay in transit of goods but also in the smooth flow of traffic. This apart one cannot loose sight of the ground reality that in a country like India where most of the people are not literate, one cannot expect a driver or the cleaner of the vehicle to be competent enough to download a Transit Declaration Form, fill it correctly and produce it before the authority on demand. Generally, the driver or the cleaner of the vehicle are not possessed of internet facility. There is no guarantee that at every place of entry in U.P. from outside there is sufficient provision where a person can go and download the Transit Declaration Form. Even if Cyber Cafe is available one is never sure of its proper functioning enabling downloa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oice, which was admittedly seized from the custody of the driver and which evidences that the goods under transport is a specialised pump meant for suction of water from deep mines and which could be of no use within the State where there are no mines. 7. On the other hand, learned standing counsel appearing on behalf of State submitted that since admittedly the TDF seized from the custody of the driver indicates that the vehicle will exit at Agra on 31.05.2014 and was found entering the State of U.P. at Jhansi and, thus, the authorities were within their jurisdiction to draw an adverse presumption against the applicant to the effect that the goods are being brought for sale within the State. He, thus, contends that the order for seizure and for release of goods on furnishing security of ₹ 10 lakhs in cash, is fully justified. 8. I have considered the submissions made by learned counsel for the parties and perused the record. 9. It is not in dispute between the parties that the consignor namely, the applicant herein is a registered dealer in the State of Uttarakhand. It is also not in dispute that the good which has been seized, is a specialised pump meant for suctio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces, enumerated above and the law on the subject, propounded by this Court in the case of Prakash Transport Corporation (supra). The Tribunal fell in same error, in simply endorsing those findings. In view of the above, the impugned orders cannot be sustained in law. 11. Considering the entire facts and circumstances of the case, I am of the opinion that while it should be left open to the authorities to initiate penalty proceedings against the appellant, but at the same time, the order for release on furnishing cash security of ₹ 10 lakhs cannot be sustained. Interest of justice would be met in directing the applicant to furnish bank guarantee for the said amount of ₹ 10 lakhs. 12.` Counsel for the applicant states that the bank guarantee will be furnished within a week. It is, therefore, directed that upon the applicant furnishing bank guarantee of ₹ 10 lakhs before the Assistant Commissioner, Mobile Squad 3, Unit Raksha, Jhansi, the seized goods shall be released forthwith. It shall, thereafter, be open to the applicant to take the goods outside the State within 24 hours, after due intimation to the Assistant Commissioner, Mobile Squad 3, Unit Raksha, Jha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
