HIGH COURT OF JUDICATURE AT ALLAHABAD ?AFR Court No. - 38 Case :- SALES/TRADE TAX REVISION No. - 488 of 2015 Applicant :- M/S Shree Balaji Concast P Limited Opposite Party :- Commissioner Of Commercial Tax U.P. Counsel for Applicant :- Suyash Agarwal Counsel for Opposite Party :- C.S.C. Hon'ble Pankaj Mithal,J.
Heard Sri Rakesh Ranjan Agarwal, Senior Counsel, assisted by Sri Suyash Agarwal and Sri Bipin Pandey, learned counsel for the revisionist.
The revision is directed against the order of seizure, which has been affirmed by the Tribunal.
The revisionist is a dealer registered under U.P.V.A.T.Act 2008 and Central Sales Tax Act for the manufacture and sale of M.S. Ingots, etc (Iron and steel-declared commodity). It consigned certain quantity of M.S. Ignots to the consignee M/S Shree Satguru Metalloys Pvt. Ltd., Meerut by excise-cum-tax invoice no. 08/369 dated 22.09.2015. The said goods during transportation from Aligarh to the consignees place at Muzaffar Nagar were seized vide order dated 24.09.2015 on the ground that the Form-21 accompanying the goods was filled up by two pens in different inks and the entries made in one of the inks were likely to evaporate after some time. The representation of the revisionist under Section 48 (7) of the Act was rejected by the Joint Commissioner on 28.09.2015 and the appeal to the Tribunal too was dismissed on 07.10.2015.
The only question for consideration in this revision is whether on the facts and circumstances of the case the authorities below were justified in affirming the seizure order dated 24.09.15 on the ground that the entries made in Form 21 accompanying the goods were likely to vanish and would not remain secure for long?
Section 48 of the Act provides for the grounds for seizure of goods and it provides that the goods are liable for seizure if the officer has reason to believe that the goods are not accounted or traceable to any bonafide dealer or the documents issued by a bonafide dealer with respect to the accompanying goods contains wrong particulars or that it is doubtful if such goods are properly accounted.
Section 21 (4) of the Act provides that every registered dealer who consigns or delivers any goods or class of goods specified under the Rules of such quantity, measure or value as may be notified, to any dealer by a reason of sale or otherwise shall issue to the purchaser or consignee a transport memo in prescribed manner and in prescribed form after obtaining it from the assessing authority having jurisdiction over the area in which principal place of dealer is situated.
Rule 55 of the Rules provides that if the officer finds or has reason to believe that the documents in respect to consignment are false, bogus, incorrect or incomplete or the goods are not covered by one of the documents mentioned in Rule 54 (1) of the Rules he can seize the goods after notice to the driver or the person in charge of the vehicle.
Rule 54 of the Rules provides that the goods referred to in Section 50 (1) of the Act should be accompanied apart from other things by a cash memo, bill, invoice or challan.
Thus, the goods under consignment are necessarily to be accompanied by transport memo in prescribed Form 21 an addition to the documents which are required to accompany the goods under Rule 55 read with Rule 54 i.e. Cash-memo, Bill invice or Challan.
The aforesaid provisions no where lays down the manner in which the Form-21 has to be filled up.
It is admitted on record that at the time of seizure the goods were accompanied by all documents including Form 21 properly filled up.
The only discrepancy pointed out for seizing the goods is that Form 21 was filled up by two separate pens as is evident from the ink used therein and that some of the entries made by one of pen was in such a ink that they were likely to fade away and ultimately vanish. It is only on the above ground that the some of the entries in Form 21 would ultimately vanish that the order was passed directing the seizure of the goods.
The Act and the Rules does not prescribe the type or the nature of the ink to be used in filling up the prescribed Form.
There is no provision under the Act which provide for seizing the goods on account of use of improper ink in filing up the Forms or for the reasons that some of the entries made in the documents would ultimately vanish.
It is not the case of the revenue that the goods were not accompanied by proper documents or the transport memo in Form 21 was not duly filled up in ink.
In the event the authorities were of the opinion that the entries in Form 21 would vanish, the proper course open for them was to get the Form 21 photocopied and counter signed by the driver or the person incharge of the vehicle to avoid misuse or reuse of the said Form.
All entries made in the transport memo stood substantiated by other documents namely the G.R. and weigh slip etc. which were available at the relevant time of issuance of show cause notice.
The assessee has produced extract of the copies of the register maintained by it containing entires of dispatch of the aforesaid goods and its receipt by consignee. In view of these documents, it cannot be said that the assessee had committed any illegality in the transportation of the goods and that they were not accompanied by the necessary documents duly filled up.
In view of the aforesaid facts and circumstances, the question raised above is answered in favour of the revisionist and against the revenue and it is held that the Tribunal committed an error in affirming the order of seizer. The goods were not liable to be seized for the reason that the entries in the prescribed Form accompanying the goods were in such ink as would not last long.
Accordingly, the orders dated 07.10.2015 passed by Commercial Tax Tribunal, Meerut Bench-II, Meerut and 24.09.2015 passed by Assistant Commissioner Trad Tax Mobile Squad (UNIT-IV) Meerut, are set aside and the goods are directed to be released forthwith.
The revision is allowed.
Order Date :- 4.11.2015 v.k.updh.