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TMI Blog2015 (11) TMI 1318X X X X Extracts X X X X X X X X Extracts X X X X ..... goods, when the petitioner company is a registered dealer and is not going to run away. At best the driver could have been ordered to keep the goods in a godown and within seven days, as indicated above, a decision could have been taken. In fact, we are doubtful whether even that course could have been followed because this is not a case of no documents or forged documents but only a case, even according to the State, of mis-declaration - soaps are also sold under the brand name Dettol and antiseptic liquid is also sold under the brand name Dettol. This does not mean that only because the brand name Dettol is used both the goods are to be classified under one entry for the purpose of assessing the tax. If this reasoning of the officer was to be accepted, tomorrow if the petitioner company starts manufacturing cars and starts selling them under the name of Dettol then would the same duty be charged on the cars also? Obviously, the answer is no. What tax has to be charged on an item depends on the classification of the item and on the entry in which that item or good falls, regardless of the brand name which it may have. - seizure was totally illegal. Accordingly, the impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether there was some mis-declaration with regard to the entry in the schedule under which Dettol Antiseptic Liquid fell and accordingly, the entire consignment of Dettol was seized at the check post. This seizure has been challenged on the ground that the Officer-in-Charge of the check post had no jurisdiction to seize these goods. 6. Section 67 of the TVAT Act deals with the establishment of check post for inspection of goods in transport and reads as follows. 67. Establishment of check posts for inspection of goods in transport:- (1) The Government may, with a view to prevent or check avoidance or evasion of tax, by notification in the official gazette, direct the establishment of the check post or barrier at such places as may be specified in the notification and every officer who exercises powers and discharges his duties at such check post by way of inspection of documents produced and goods being moved, shall be in-charge. (2) The driver or person in-charge of vehicle or carrier of goods in movement shall:- (a) carry with him the records of the goods including challan, bills of sale or dispatch memos and prescribed declaration form duly filled in and signed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer on being satisfied, may permit him to be included as a party to the case; and thereafter, all provisions of this section shall mutatis mutandis apply to him. (7) The officer-in-charge of the check post or the officer empowered under sub-section (3) may release the goods to the owner of the goods or to any person duly authorized by such owner on payment of the tax and penalty imposed under sub-section (5). (8) Where the driver or person in charge of the vehicle or the carrier is found guilty for violation of the provisions of sub-section (2), subject to the provisions of clause (a) of sub-section (4), the officerin- charge of the check post or the officer empowered under subsection (3) may detain such vehicle or carrier and affording an opportunity of being heard to such driver or person in charge of the vehicle or the carrier, may, impose a penalty not exceeding ten thousand rupees. (9) Where a transporter, while transporting goods, is found to be in collusion with dealer to avoid or evade tax, the officer-in-charge of the check post or the officer empowered under sub-section (3), shall detain the vehicle or carrier of such transporter and after affording him an oppor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge of the vehicle not to part with the goods by transporting or re-booking till verification is done and this must be done within 7 days. Clause(b) of sub-section (4) gives power to the officer to seize the goods for reasons to be recorded in writing and on such seizure the officer has to give receipt of the goods to the person from whose possession or control they are seized. 9. When we read sub-section (4) carefully the power of seizure is only given when the documents are either not produced or the documents produced appear to be false or forged. Sub-section 5 of Section 67 empowers the officer-in-charge of the Check Post or the officer specifically empowered in this behalf to impose tax and penalty. . . 12. First we shall deal with the issue as to whether the order of seizure in this case was proper or not. As discussed earlier the power to seize is granted only when the goods are without documents or are not supported by documents mentioned in subsection (2) or the officer-in-charge of the check post is of the view that the documents are false or forged. In the present case the documents were there. Admittedly, the documents were not forged but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entails less payment of tax and have thus mis-declared the goods with a view to evade taxes. As already held by us earlier, we are not going into the question of assessment as that is an order which the Assessing Officer must pass after hearing the party. However, we are clearly of the view that the Officer-in-Charge of the check post did not have the authority to seize the goods since the documents were produced and he has not even prima facie come to the conclusion that the documents are false or forged. 11. According to the Assessing Officer there is mis-declaration only with regard to the entry under which Dettol Antiseptic Liquid falls. He has totally lost sight of the fact that as per the invoice it was a stock transfer and if it is a stock transfer then it would not be amenable to tax and there would be no question of assessing tax at that stage. Assuming for the sake of deciding this case, without holding so, that there is mis-declaration then also the respondent No. 3 had no authority to assess the tax. He could have at best sent a communication to the Assessing Officer of the place where the goods were being sent and raised an issue that these goods should be taxed as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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