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TMI Blog2012 (10) TMI 1159X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner and the Ex-UP Principal was to provide Form F for the transaction. The registration certificate and the agreement with Ex-UP Principal have been brought on record. It is not disputed that Form F has already been provided in terms of the settlement. 3. The business of purchasing commission agency stands accepted by the assessing authority since its inception on 9-11-2005 till 2008-09 after detailed examination of the nature of transaction and books of accounts. The assessment orders of the previous years reflecting the aforesaid position have been brought on record. The petitioner purchases mentha oil from the farmers on behalf of Ex-UP Principal and dispatch as against statutory form 6R, 9R and gate pass of Mandi Samiti. Mandi fee at the rate of 2.5% is charged on removal of goods from Mandi area for dispatch of goods to Ex-UP Principal. Name of Ex-UP Principal is mentioned on 6R. The entry in books is also made on behalf of Ex-UP Principal. The goods are dispatched within two or three days of the purchase to the Ex-UP Principal as soon as one truck load of goods are purchased. 4. It has been submitted by the petitioner s counsel that such transactions are exempted unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any undervaluation of more than 50%, and also that the second detention memo was based on absolutely incorrect facts, but the prayer for release of goods was not accepted and a show cause notice dated 30-7-2010 was issued. 7. In show cause notice, it has been stated that the goods which were being transported are not the same as purchased against 6R mentioned in the transfer invoice. This inference was drawn for the following reasons : (a) The test report of the percentage of menthol in the mentha oil obtained from the random sample from 10 drums is almost similar. (b) The inspection of the 6R shows that names of different farmers/sellers has been written in the same manner. (c) The purchases on 20-7-2010 have been made from 38 persons which is not possible in one day. (d) There is difference in the entries of transfer invoice and 9R as shown below :- Sl. No. Entries in transfer invoice Particular Amount in Rs. Entries in 9R Particular Amount in Rs. 1. Commission 6,660.00 Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed counsel for the petitioner further emphasized that the grounds of detention and seizure cannot be attributed to any of the conditions mentioned in Section 48(2) of the Act, which permits seizure when the goods are not properly accounted for by any dealer in his accounts, registers or other documents maintained in the course of his business. The submission is that the goods mentioned in the transfer invoice and 6R were the same and there being no anomaly, the same could not have been seized on the ground that they were not accounted for by the dealer in his account books. 13. On facts and legal proposition as propounded by Hon ble Supreme Court in Commissioner of Sales Tax and others v. M/s. Bakhtawar Lal Kailash Chandra Arhti and others, (1992) UPTC 971, the Court has to see whether on the grounds aforesaid, the goods could have been detained or seizure order could have been passed. 14. A perusal of the detention orders aforesaid along with the show cause notice and the order of seizure shows that apparently on lurching suspicion that the goods being transported were not the same goods as purchased against 6R mentioned in transfer invoice and also because allegedly it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 12-12-2006 directing the release of goods without any security. This case is applicable in the present case also. Their Lordships also considered the decision in Girdhari Jiva Lal v. Assistant Commissioner of Sales Tax, reported in 8 Sales Tax Cases 732 and the decision of the Hon ble Supreme Court in the case of Deputy Commissioner of Agriculture Income Tax and Sales Tax v. Travencore Rubber and Tea Company, reported in Supreme Court on Sales Tax Compilation, Volume-2, 1814 and its judgment and order dated 21-9-2006 passed in Writ Petition No. 5169 (M/B) of 2006 Jai Narain and others v. State of U.P. and others. The SLP against the said order of release was dismissed by the Apex Court. 18. Reliance has also been placed upon the case of M/s. Shaw Scott Distilleries Private Ltd., Rampur and another v. Sales Tax Officer, Check Post Mobile Squad Mathura and others, reported in 1983 UPTC 387. In this case, a Division Bench of this Court held that the power to seize goods under Section 13-A of U.P. Sales Tax Act is conferred upon an officer authorised in that behalf where either the goods cannot be traced to any bona fide dealer or where it is doubtful if the goods are prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the authorities while proceeding to seize the goods in question and serving the impugned notice have not applied their mind and their action suffers from vice of arbitrariness. It is a case of highhandedness on the part of the authorities while exercising their statutory power under the Act. No heed has been given to the objections filed by the petitioner and the statement given at the time of seizure. There appears to be no doubt that it was open for the authorities to look into the matter and take a decision with regard to seizure of goods but while exercising jurisdiction, it was incumbent on the authority concerned to be fair and just while dealing with commercial transaction. Any decision taken by the authorities arbitrarily or for unwarranted reason shall not only suffer from vice of arbitrariness but will have long effect over the business community. It is the duty of the taxing authority to deal fairly and justly while taking a hard step like seizure of goods during transaction from one place to another. 23. In the present case, the entire action of the authority is based on unfounded facts. They have not tried to apply their mind over the objections filed by the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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