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TMI Blog2016 (9) TMI 717X X X X Extracts X X X X X X X X Extracts X X X X ..... st, Shamlaji, seizing the goods and detaining the vehicle being Truck No.DL-1-LV-9684, at Annexure "A", under the Gujarat Value Added Tax Act, 2003 as being illegal, without jurisdiction and without the authority of law; [B] YOUR LORDSHIPS BE PLEASED to issue writ of mandamus or any other appropriate writ, direction or order in the nature of mandamus directing the Respondents to release the seized goods of the petitioner found in Truck No.DL-1-LV-9684 as mentioned in the retail invoice produced at Annexure "C" and further, release the Truck No.DL-1-LV-9684 of the petitioner in the interest of justice." 3. It is the case of the petitioner that its truck bearing No.DL-1-LV-9684 was detained at Shamlaji Check Post. The truck was stopped vide memo No.1402 dated 21.12.2015 at 06:15 a.m. in the morning by the officer-in-charge of the Shamlaji Check Post on the ground that the petitioner was not carrying online Form No.403. The first respondent, Officer-incharge, Shamlaji Check Post, passed an order dated 21.12.2015, seizing the goods and detaining the vehicle being Truck No.DL-1-LV-9684 on the ground that the truck was not carrying the Form No.403. It is the case of the petitioner t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that therefore, under sub-sections (4) and (5) of section 68 of the GVAT Act, the officer-in-charge is empowered to seize the goods but not the truck. Moreover, the amount of tax payable is required to be paid for the release of the goods or documents seized under sub-section (4) of section 68, but not for release of the truck. It was submitted that the officer, therefore, had no authority in law to seize the truck of the petitioner. 5. It was further pointed out that in the impugned order, the Commercial Tax Officer has not recorded any reasons as to why the penalty of 150% is required to be imposed. The attention of the court was invited to the communication dated 06.01.2016 of the Deputy Commissioner of Commercial Tax, to point out that the higher officer had directed him to recover an amount of Rs. 1,54,152/- from Adarsh Enterprise towards its pending value added tax dues and to impose 150% fine for the purpose of release of the goods/truck. It was submitted that therefore, the Commercial Tax Officer while passing the impugned order, has acted under the directions issued by the higher authority and has not independently applied his mind on the question of penalty in the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht into force with effect from 01.04.2006, at the time when it came to be originally enacted sub-section (4) of section 68 empowered the officer-in-charge of the check-post to seize the goods and the vehicle. However, by virtue of The Gujarat Value Added Tax (Amendment Act), 6 of 2006, the words "and vehicle" came to be substituted by the words "and detain the vehicle". Thus, with effect from the coming into the force of the Gujarat Value Added Tax (Amendment Act), 2006, the officer-in-charge of the check-post no longer had the power to seize the truck. The power vested in the officer in-charge was limited to detaining the truck and seizing the goods. Having regard to the fact that the words "seize such goods and the vehicle" came to be substituted and the power to seize the vehicle came to be specifically taken away, it is evident that the intention of the legislature was to ensure that since the violation under the provisions of the GVAT Act is in relation to the goods, it is only the goods which should be seized and, accordingly, expressly deleted the power to seize the vehicles and provided for a power to only detain the vehicle. 9. Insofar as the power to detain a vehicle und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated in the strictest terms. 11. Another glaring aspect of the matter is that the Deputy Commissioner of Commercial Tax, who is a superior officer, has instructed the Assistant Commissioner of Commercial Tax to impose penalty at 150% and not to release the truck and the goods till such amount is paid and it is pursuant to such directions that the Commercial Tax Officer has imposed penalty at 150% of the tax amount. Evidently therefore, at all levels, the authorities under the GVAT Act appear to be ignoring the provisions of sub-section (5) of section 68 of the GVAT Act which does not empower them to seize the truck or impose any penalty for release thereof. In this regard, the authorities under the GVAT Act may well be advised to keep in mind that the indemnity provided to them under section 90 of the GVAT Act extends to actions taken by them in accordance with law and not to acts committed by them in excess of their authority. In the facts of the present case, since the petitioner has not raised any grievance nor requested for any strict action to be taken against the respondent authorities for wrongly detaining the truck, the court does not deem it fit to pass any further orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scheme involving adjudicatory process." "57. Yet again in Purtabpore Co. Ltd. v. Cane Commr. of Bihar, (1969) 1 SCC 308, this Court held: "11. ... The power exercisable by the Cane Commissioner under Clause 6(1) is a statutory power. He alone could have exercised that power. While exercising that power he cannot abdicate his responsibility in favour of anyone-not even in favour of the State Government or the Chief Minister. It was not proper for the Chief Minister to have interfered with the functions of the Cane Commissioner. In this case what has happened is that the power of the Cane Commissioner has been exercised by the Chief Minister, an authority not recognised by Clause 6 read with Clause 11 but the responsibility for making those orders was asked to be taken by the Cane Commissioner. 12. The executive officers entrusted with statutory discretions may in some cases be obliged to take into account considerations of public policy and in some context the policy of a Minister or the Government as a whole when it is a relevant factor in weighing the policy but this will not absolve them from their duty to exercise their personal judgment in individual cases unless expli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of drastic power like removal of President of a Municipality under Section 22 of the Act. To say the least, what has been done is not what is expected to be done by a senior official like the Principal Secretary of a wing of the State Government. We leave it at that and say no more on this issue." 16. Thus, a statutory authority vested with jurisdiction must exercise it according to its own discretion. Discretion exercised under the direction or instruction of some higher authority is failure to exercise discretion altogether. That is exactly what has taken place in the present case. The Commercial Tax Officer has abdicated the duties cast upon him under the provisions of the GVAT Act and has acted under the instructions of the superior officer while passing the impugned order in exercise of powers under sub-section (5) of section 68 of the said Act. Thus, the discretion exercised under the instructions of the higher authority is failure to exercise discretion altogether. Moreover, the impugned order, clearly betrays lack of application of mind on the part of the Commercial Tax Officer, as no reasons have been assigned for imposition of the maximum rate of penalty. The impugne ..... 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