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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 ..... nciples relating to exercise of discretion by statutory authorities. The Legislature has used the word "may" in Section 43(8) and that, again, goes a long way to persuade us to hold that the power is discretionary. The legislative intent was that an appeal will lie against a direction for release ordered under Section 43(8) and, when it is refused, no appeal will lie under Section 53. It may not be out of place to record that, subsequently in the year 2012, Section 56(b), itself, was amended by the Legislature and, after the amendment in 2012, Section 56(b) does not contain the prohibition against an appeal or revision against action under Section 43(8). Therefore, it would appear to be an error, which was probably noticed by the Legislature as Section 53 and Section 56(b) were completely inconsistent with each other. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fact that the respondent had clearly violated the mandatory provision of Section 50(1) of the VAT Act? (v) Whether learned Tribunal was justified to have made adverse remarks against Assistant Commissioner (Mobile Squad), Commercial Tax, Rudrapur overlooking the facts on record and provisions of Law? 2. Before we proceed to consider the substantial questions of law, it may be necessary to advert to a few facts. The truck in question was intercepted when it was in the territory of the State of Uttarakhand. It appears that the truck was coming from Jharkhand and was bound for Muzzafarnagar in the State of Uttar Pradesh. The case of the appellant is that, when it entered the State of Uttarakhand, there was a check-post. It was obliged to take a transit pass. Furthermore, it had to fill-up the trip sheet. On receiving information that the persons in charge of the truck had not complied with the requirements, inasmu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 or these rules or as may, consistent with the Act or these rules, be conferred on or assigned to them. 5. Powers of Assessment and matters incidental thereto: (2) All Joint Commissioners, Deputy Commissioners and Assessing Authorities, and all other officers authorised under sub- rule (3) shall be competent to exercise all or any of the powers under section 42 or section 43: Provided that prior permission of the higher authority shall be necessary before any powers under the said sections are exercised by any of the aforesaid authorities beyond the limits of his jurisdiction. (ii) These provisions are referred to in an attempt to point out that what Section 43(8) of the Act contemplates is only the passing of an order granting release on such terms as are found fit. In other words, it is his argument that there is no discretion vested with the officer concerned to refuse relief under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 served on the dealer or, as the case may be, the person in-charge. (7) The officer seizing the goods shall serve on the dealer or, as the case may be, the person in-charge an order in writing mentioning the fact of such seizure and indicating the amount, not exceeding such amount as would be sufficient to cover the penalty likely to be imposed, on the deposit whereof in cash, the goods so seized shall be released in favour of the dealer or, as the case may be, the person in-charge. (8) Notwithstanding any thing contained in sub-section (7), the Commissioner or such officer, not below the rank of Deputy Commissioner, as may be authorised in this behalf by the Commissioner, may, for sufficient reasons to be recorded in writing, direct that goods be released without any deposit or on depositing such lesser amount, or furnishing security in such form other than cash, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 sub-section (8) of Section 43, may within ninety days from the date of service of the copy of such order, decision or direction on him, prefer an appeal to the Tribunal: Explanation. For the purpose of this sub-section, the expression any person in relation to any order passed by an authority other than the Commissioner includes the Commissioner and, in relation to any order passed by the Commissioner includes the State Government. 9. Lastly, we also advert to Section 56 of the Act, which reads as follows: 56. Orders against which No Appeal or Revision shall lie: No appeal and no application for revision shall lie against- (a) an order or notice under Section 24, Section 25, Section 26 and Section 29 initiating an enquiry for assessment or reassessment; (b) any order or action under Section 42 or sub-section (1), sub-sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpressly 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 juncture, note the submission of the learned Amicus Curiae that the Court must make an effort to widen its jurisdiction as far as possible. In this regard, he drew our attention to the following maxim in Broom s Legal Maxims and which pertains to the Judicial Office: BONI JUDICIS ESTAMPLIARE JURISDICTIONEM. (Chanc. Prec. 329.) -It is the duty of a judge to extend this jurisdiction. This maxim, as above-worded and literally rendered, is erroneous. Lord Mansfield suggested that for the word jurisdictionem, justitiam should be substituted and Sir R. Atkyns had previously remarked: it is indeed commonly said boni judicis est ampliare jurisdictionem; but I take that to be better advice which was given by Lord Chancellor Bacon to Mr. Justice Hutton upon the swearing him one of the Judges of the Court of Common Plea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terpretation 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 proviso or in the language of section 34 which has an impact or effect to restrict the power of the court as contemplated under section 34(1) read with the opening words of sub-sections (2) and (4) of section 34 of the Act. Est boni judicis ampliare jurisdictionem is a settled canon of law courts should expand and amplify jurisdiction to achieve the ends of justice and not unnecessarily restrict its discretion particularly when the later approach would lead to frustrate the very object of the Act. 13. We must, first, consider the submission of the learned Amicus Curiae that, having regard to the provisions contained in the Rules, which we have adverted to, under Section 43(8) of the Act, there is a duty to pass a positive direction whenever application is made. We have already referred to Sub-Sections (7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal 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 expand their jurisdiction. It is a principle of justice and equity. In the first place, here, we are dealing with the jurisdiction not of this Court, but that of the Tribunal. The Tribunal is a creature of the statute. But, we will proceed on the basis that, even in respect of the Tribunal, the principle contained in the maxim, commended for our acceptance by the learned Amicus Curiae, has operation. But, it cannot, in our view, apply in a case, where, on a proper interpretation of the provisions, the appeal is not maintainable. It is the case of the revenue that the intention of the Legislature was that in cases, where a direction is not given under Section 43(8), the matter can always be challenged in proceedings under Article 226 of the Constitution. It is not as if the person concerned is left wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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