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TMI Blog2015 (11) TMI 939X X X X Extracts X X X X X X X X Extracts X X X X ..... ). 2. The facts stated briefly are that the petitioner is engaged in trading of sopari (betel nut) and is registered under the value added tax law of the Union Territory of Diu. It appears that the petitioner had placed an order upon one M/s Star Traders, who is a registered dealer in the State of Kerala for purchase of sopari, pursuant to which, the goods moved through transporter M/s Ocean Cargo from Mangalore to the place of business of the petitioner in Diu. For the purpose of reaching Diu from Mangalore, the goods were to pass through the State of Gujarat. It is the case of the petitioner that section 69 of the Gujarat Value Added Tax Act, 2003 (hereinafter referred to as "the VAT Act") requires the transporter to get a transit pass i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m 404. According to the petitioner, the officer at the check-post informed the carrier that since there was no exit check-post in Diu, it would not be possible for him to issue transit pass even on the basis of the manual application. Thus, though the transporter had given application for transit pass in Form 404, no transit pass was issued to the transporter, and the truck with the goods, was allowed to enter into the State of Gujarat. However, when the truck carrying the goods was approaching Karjan in Vadodara district, it was stopped by the second respondent of the Enforcement Division of the Commercial Tax Department. It is the case of the petitioner that the truck was simply detained on the highway and there was no check-post or barri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or barrier as contemplated under section 68(1) of the VAT Act. Reference was made to the provisions of section 68(4) thereof to point out that it is an officer in-charge of the check-post or barrier who is empowered to take action under the said provision. It was submitted that in the facts of the present case, the officer who has issued the memo under section 68(4) as well as the show cause notice under section 68(5) of the VAT Act had no authority in law to detain the truck and to issue seizure memo and the show cause notice, as he was not an officer in-charge of a check-post or barrier. It was, accordingly, urged that the action of the respondents being devoid of any authority of law, the impugned seizure memo as well as the show cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng such goods and enter and search the vehicle and inspect the goods and records relating to the same and elicit such information from the carrier as is relevant. It was, accordingly, urged that the truck was detained under section 68(4)(b) of the Act wherein, the officer after recording the reasons, seized the goods and detained the vehicle and, therefore, the action of the second respondent is well within the bounds of his authority and that the petition being devoid of merit, deserves to be dismissed. 7. This court has considered the submissions advanced by the learned counsel for the respective parties and has perused the record of the case. 8. A perusal of the seizure memo as well as the show cause notice issued by the second respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasonable opportunity of being heard and after holding such further inquiry, as he deems fit, impose on h penalty, in addition to tax payable under this Act, not exceeding one and one- half times of the tax for possession of goods or vehicles so seized. (b) The officer-in-charge of the check-post or a barrier may release any of the goods, vehicle or documents so seized under sub-section (4) on payment of tax, interest and penalty or on furnishing such security in such form as may be prescribed." 9. Thus, on a plain reading of the above provision, it is evident that it is the officer in-charge of a check-post who is empowered to take action under sub-sections (4) and (5) of section 68 of the VAT Act. Sub-section (1) of section 68 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment by issuing a notification specifying the places where such check-post is to be set up or barrier is to be erected. Under the circumstances, the second respondent had no jurisdiction to take any action in exercise of powers under section 68(4) or (5) of the VAT Act. The impugned seizure memo and show cause notice are, therefore, without any authority in law and therefore, the same cannot be sustained. 10. It may be noted that the learned Assistant Government Pleader had sought to support the impugned seizure memo and the show cause notice on the merits of the case. In the opinion of this court, when the action of the second respondent is totally without jurisdiction, the question of going into the merits of the show cause notice w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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