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TMI Blog2014 (11) TMI 924X X X X Extracts X X X X X X X X Extracts X X X X ..... and VAT Act, 2005, in view of the fact that no direction to release the goods had been issued by the order of the Deputy Commissioner (Enforcement) dated 10.09.2009 and particularly in view of legal bar as contained under Section 56(b) of the Uttarakhand VAT Act, 2005? (ii) Whether by entertaining and deciding Second Appeal against the order of dismissal of the application of the respondent Driver, passed U/s 43(8) of the Uttarakhand VAT Act, 2005; the Commercial Tax Tribunal, Haldwani exceeded its jurisdiction and, therefore, the impugned judgment and order dated 16.09.2009 passed by the Tribunal is liable to be set aside on this ground alone? (iii) Whether despite of non-availability of remedy of Second Appeal before the Commercial Tax Tribunal, against an order of dismissal of the application U/s 43(8) of the Uttarakhand VAT Act, 2005 an aggrieved person may have an extra-ordinary remedy to assail the said order under Article 226 of the Constitution of India before this Hon'ble High Court? (iv) Whether learned Tribunal was justified to set aside the order of Deputy Commissioner (Enforcement) and to release the goods without depositing the amount of security inspite of the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 43(8) of the Act, no appeal could be maintainable under Section 53 of the Act. To re-enforce herself in her stand, she also seeks support from the provisions contained in Section 56(b) of the Act. She would also submit that the Tribunal has proceeded to make unwarranted observations against certain officers. According to her, the officer, against whom the observations were made, was actually not the in-charge of the mobile unit and it was actually somebody else, who was in-charge of the mobile unit. It was also submitted that the officer only acted in accordance with law and, as pointed out earlier, there was neither transit pass obtained nor trip sheet filled-up, as was required in law. Therefore, the order of the Tribunal deserves to be set aside. 5. The learned Amicus Curiae would submit as follows: (i) He invited our attention to Rule 4(7) and Rule 5(2) of the Uttarakhand Value Added Tax Rules, 2005, which we extract herein below: "4. Commercial Tax Authorities and their powers: (7) Subject to the general control of the Commissioner, the Joint Commissioner and Deputy Commissioners shall also exercise the powers conferred, and perform the duties imposed by or under the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ze such goods and the remaining provisions of this section shall mutatis mutandis apply in relation to such seizure. (3) An officer seizing the goods under sub-section (1) shall take all the measures necessary for their safe custody and forward the list, referred to in the proviso to sub-section(1), along with other documents relating to the seizure to the assessing officer concerned. (4) The said assessing authority shall serve on dealer or, as the case may be, the person in charge of goods at the time of seizure (hereinafter in this section referred to as the person in charge) a notice in writing requiring him to show cause, why a penalty should not be imposed. (5) If such officer, after taking into consideration the explanation, if any, of the dealer, or as the case may be, the person in-charge and giving him an opportunity of being heard, is satisfied that the said goods were willfully omitted from being shown in the accounts, registers and other documents referred to in sub-section (1), it shall pass an order imposing a penalty not exceeding forty percent of the value of such goods as he deems fit. (6) A copy of the order imposing penalty under sub-section (5) shall be ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of penalty imposed under sub-section (5), the excess amount so deposited shall be refunded to the dealer or, as the case may be, the person in-charge, by the officer with whom it was so deposited in accordance with the provisions of section 36." 7. Section 51 of the Act provides for a first appeal. It, inter alia, provides as follows: "51. First Appeal- (1) Any dealer or other person aggrieved by an order made by the Assessing Authority, other than an order mentioned in Section 56 or sub-section (7) and sub-section (8) of Section 43, may, within sixty days from the date of the service of the copy of the order, appeal to such authority as may be prescribed, and shall also serve a copy of the Memorandum of Appeal on the Assessing Authority." 8. Section 53 of the Act provides for an appeal to the appellate Tribunal. Section 53(1), insofar as it is relevant for us, is extracted herein below along with the explanation: "53. Appeal to the Appellate Tribunal- (1) Any person aggrieved by an order passed under Section 51 (other than an order referred to under sub-section (2) of that section), under Section 52, or under Section 76, or a decision under Section 57, or a direction under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing result: Orders passed under Section 51, except the orders under Sub-Section (2) of Section 51; orders passed under Section 52 and under Section 76, are rendered appealable. A decision under Section 57 is also made appealable. Lastly, a direction issued under Section 43(8) is also made appealable. (iii) Next, we must consider Section 56(b) of the Act. Section 56 appears in the statute after Sections 51 and 53, which provides for appeals to the first appellate authority and to the appellate Tribunal respectively. Revision to the High Court is also provided under Section 55. It is, thereafter, that it is provided in Section 56 that no appeal and no revision shall lie, inter alia, against an order or action taken under Sub-Section (8) of Section 43. (iv) On the one hand, under Section 53 of the Act, an appeal is expressly provided against a direction given under Section 43(8); at the same time, curiously, we find that Section 56(b) bars filing of any appeal against any order or action passed under Section 43(8). As we have already noted, no first appeal is maintainable under Section 51 of the Act against an order passed under Section 43(8) of the Act. 11. We must, at this j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iv) of clause (a) of section 34. According to the appellants the proviso applies to the entire section while according to the respondent, its operation is limited to sub-clause (iv) alone. There seems to be some merit in the contention of the respondent inasmuch as the language of the proviso is directly referable to the section itself and, thus, must take its colour from the principal section viz. 34(2) (iv). A reading of the proviso shows that where severability is possible, the court in the class of the cases falling under sub-clause (iv) is expected to set aside the award partially. In other words, a greater obligation is placed upon the court to adopt such an approach when the case in hand is covered under the provisions of sub-clause (iv). This contention will not have any adverse effect on the interpretation and scope of section 34 as a whole. It is a settled rule of interpretation that the statutory provision should be read as a whole to find out the real legislative intent and that provision should be read by keeping in mind the scheme of the Act as well as the object which is sought to be achieved by the Legislation while enacting such a law. There is nothing in the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retionary. 14. Having found that the power to be exercised is discretionary, we must pass on to the consideration of the main question involved in this revision, which is, whether the appeal filed before the Tribunal was maintainable. There is no dispute that there is no direction given to release the goods within the meaning of Section 43(8) of the Act. The officer, who was approached to invoke the power under Section 43(8), has declined to exercise the power under Section 43(8) and has rejected the request to release the goods under Section 43(8). This, he was certainly entitled to do. We are not here expressing any view regarding the merits of his decision in view of the course that we are adopting. Therefore, there is no direction directing release of the goods. Section 53 provides only for an appeal against a direction issued under Section 43(8). We are of the view that, what the Legislature contemplated, is that, only when a direction is given within the meaning of Section 43(8), it becomes appealable before the Tribunal under Section 53. It is settled law that an appeal is a creature of the statute. It may be true that, whenever it is possible, courts must make an effort to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which was probably noticed by the Legislature as Section 53 and Section 56(b) were completely inconsistent with each other. 16. Incidentally, we may notice in the Explanation to Section 53 that the person, who could file the appeal, includes the Commissioner. But, again, we notice curiously that it is in relation to an order and not in relation to a direction. But, nonetheless, we would think that, in view of the word "direction" under Section 43(8), the Legislative intent is clear that it is only a direction under Section 43(8) ordering release of the goods, which would be appealable. 17. Apparently, the goods would have been, in all probability, according to the learned Brief Holder and the learned Amicus Curiae, released pursuant to the order, as there was no order of stay. 18. The outcome of the above discussion is that the Revision is to be allowed and the same is allowed. We answer the question of law in regard to the maintainability of the appeal in favour of the revisionist. The impugned order, therefore, cannot be sustained on the ground that the appeal was not maintainable. Therefore, the impugned order is set aside. We, however, make it clear that this order will not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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