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TMI Blog2011 (5) TMI 874X X X X Extracts X X X X X X X X Extracts X X X X ..... (iii) The order dated May 7, 2011 has been passed without fulfilling the preconditions necessary for concluding undervaluation of the consignment; the State has not discharged its burden of proving undervaluation of the consignment; the order is illegal and liable to be set aside." Though these are three grounds raised in the petition, we propose to consider ground No. 1 and in addition the question whether the importer/ transporter, has a remedy under the U.P. Value Added Tax Act by way of appeal and/or revision. The petitioner, a proprietary concern, contends that its TIN No. 09985603867 was suspended on May 4, 2011 and subsequently cancelled on May 10, 2011. These orders, according to the petitioner, have been passed ex parte, without observing the principles of natural justice and in violation of the statutory norms. The petitioner has challenged these two orders by filing separate proceedings. In the instant case, what is challenged is the order of seizure dated May 7, 2011 passed by respondent No. 2. According to the petitioner, it purchased footwear from Bhiwadi, near Alwar in the State of Rajasthan. It carried the products from Bhiwadi to Delhi by local transport and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner has a remedy by way of filing an appeal, as also by moving under the first proviso to sub-section (7) of section 48 of the U.P. VAT Act, this court should not exercise its extraordinary jurisdiction. In respect of other contention, it is submitted that as the owner of the vehicle has filed reply to the show cause through the petitioner, the petitioner has submitted itself to the jurisdiction of the respondents and, as such, even if the petitioner is aggrieved, the proper remedy would be to firstly move under the first proviso to sub-section (7) of section 48 of the U.P. VAT Act and then, if aggrieved, to move under the provisions of section 57(4) of the U.P. VAT Act. With the above background, we may now proceed to firstly consider the first contention advanced on behalf of the petitioner, namely, that there is no power of seizure in the authority under section 50 of the U.P. VAT Act. Relevant are sub-sections (1), (4) and (5) of section 50, which are reproduced below: "50. Import of goods into the State by road against declaration.(1) Any person (hereinafter in this section referred to as the importer) who intends to bring, import or otherwise receive, into the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on an opportunity of being heard, that such goods were being so transported in an attempt to evade assessment or payment of tax due or likely to be due under this Act, he may order detention of such goods. By virtue of subsection (5) of section 50, various provisions of section 48 of the U.P. VAT Act, which are the machinery provisions, have been made applicable to the goods under sub-section (4). One such provisions is sub-section (7) of section 48, under which the officer seizing the goods, can release the goods on calling upon the dealer or the person-in-charge, and indicating the amount not exceeding the amount which will be sufficient to cover the penalty likely to be imposed, to deposit the said amount in cash. Under the first proviso to this sub-section, the Commissioner or such other officer, not below the rank of a Deputy Commissioner, as may be authorised by the Commissioner, for sufficient reasons to be recorded in writing, can direct for release of the goods without any deposit or on depositing such lesser amount, or furnishing security in such form other than cash or indemnity bond, as he may deem fit. A consideration of this section would indicate that the goods have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbent on a person, who is importing goods, to declare the true value of the goods. Failure to declare the true value of goods would result in the document being held not to be a proper document in the context of the valuation. It was then submitted that the power of seizure, if at all, is located under section 48 of the U.P. VAT Act. From a perusal of sections 48 and 50 of the U.P. VAT Act, we find that section 50 is in respect of importing goods into the State by road against declaration, whereas section 48 confers general power in respect of seizure of goods. The Legislature itself has conferred power of detention in respect of goods being imported under section 50, if not covered by proper and genuine documents and by virtue of section 50(5) has incorporated the machinery provisions of section 48 into section 50. We, therefore, have no hesitation to hold that under section 50(4) of the U.P. VAT Act, the officer making search has power to detain goods not covered by a proper and/or genuine documents. We, therefore, have no hesitation in holding that the power to seize goods imported into the State without proper or genuine document is located in section 50(4). We may now consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 57(4) of the said Act, and that, it goes without saying that the order passed by the Tribunal is revisable by the High Court. The question arose before the court, whether the legality of the seizure could be gone into in proceedings under the first proviso to section 57(4) of the U.P. VAT Act. The learned Bench observed that, on recording reasons, the authority can order release of goods even without asking for any security, and it will necessarily follow that if the seizure order is bad, he can grant the relief, which necessarily requires examination of validity of the seizure order. The court, then, specifically observed that "the question of validity of the seizure order is required to be gone into by the authority concerned before fixing the amount to be deposited by the dealer for releasing of the goods." As regards Gupta Suppliers Company [2011] 45 VST 38 (All); [2010] UPTC 1693, this was an interim order. The attention of the learned Division Bench was admittedly not invited to the judgment in Rida International See page [2013] 58 VST 40. (Writ Tax No. 2166 of 2009). The contention raised before the learned Division Bench in Gupta Suppliers Company [2011] 45 VST 38 (All); ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry." It would, thus, be clear that under the first proviso, against the order of the officer, on an application to the Commissioner, the Commissioner, for sufficient reasons, can direct the release of goods without any deposit or on depositing such lesser amount, or furnishing security in such form other than cash or indemnity bond, as he may deem fit. The officer concerned, in terms of section 48(7), can only order deposit in cash 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. 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 aggrie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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