Allahabad High Court
M/S S.B. International Gularbhoj vs The Commissioner Commercial Tax ... on 8 August, 2013
Bench: Arun Tandon
HIGH COURT OF JUDICATURE AT ALLAHABAD
?A.F.R.
Court No. - 10
Case :- SALES/TRADE TAX REVISION No. - 643 of 2013
Applicant :- M/S S.B. International Gularbhoj
Opposite Party :- The Commissioner Commercial Tax Lko
Counsel for Applicant :- Piyush Agrawal
Counsel for Opposite Party :- C.S.C.
Hon'ble Arun Tandon,J.
Heard Sri Piyush Agrawal, learned counsel for the assessee-revisionist and learned Standing Counsel for the department.
Assessee seeks quashing of the order passed by the Joint Commissioner (SIB), Commercial Tax, Moradabad in proceedings under Section 48 (7) of the Value Added Tax dated 27th April, 2013 as also the order of the Commercial Tax Tribunal dated 7th May, 2013, whereby the second appeal filed by the assessee against the said order of the Joint Commissioner being Second Appeal No. 131/13 has been dismissed and thereby the order of the Joint Commissioner has been maintained.
The facts giving rise to the present revision are as follows:
Vehicle no. UP21N-4688 was intercepted by the Assistant Commissioner (In-charge), Commercial Tax, Mobile Squad VIth Unit, Moradabad. It was found that chemicals were transported vide Builty No. 135/24-4-13 through the vehicle belonging to Jai Durga Transport Service, Ghaziabad. The builty disclosed that the goods were to be transported from Delhi to Goolar Bhoj (Uttrakhand). The goods were accompanied by Invoices, first dated 18th April, 2013 disclosing the value of the goods as 39,22,920/- being Invoice No. 06/257/18-4-13 of M/s Bhagwati Traders, 288, Naya Bans Delhi and second dated 18th April, 2013 disclosing the value of the goods as Rs. 38,51,499.60/- being Invoice No. 09/406 of M/s Mahavir Enterprises, Behind Novelty Cinema, Delhi. That Form-16 was made available bearing No. 1636377 of the assessee, namely, M/s S.B. International Goolar Bhoj, Gadarpur, Udham Singh Nagar.
No transit pass could be produced by the transporter nor could it be downloaded from the official website at the time the goods were so intercepted.
Mobile Squad authorities treating such non-production of transit pass even after entry into the State of Uttar Pradesh held the same is in violation of Section 52 read with Rule 58 of the Value Added Tax Act. The goods were accordingly seized. Against the seizure order, the assessee made an application under Section 48(7) of the Value Added Tax Act, which was rejected and the assessee was permitted release of the goods on furnishing security of 40% of the value of the goods in cash. Against the said order, the assessee filed second appeal before the Commercial Tax Tribunal. It has also been dismissed. Hence the present revision.
The Tribunal under the order impugned has held that the vehicle had been intercepted on 20th April, 2013. At the time of interception, neither any transit or declaration form was produced nor it could be downloaded from the official website. It has been held that the form was produced bearing the date as 22nd April, 2013.
It has, therefore, been held that entry of the goods within the State of Uttar Pradesh without transit pass was in violation of the provisions of Section 52 read with Rule 58 of the Value Added Tax Act, which justified the seizure and the demand of security for release of the same.
Learned counsel for the assessee with reference to the judgment of the High Court in the case of Commissioner Sales Tax, U.P. vs. M/s. Rohit Surfactants Pvt. Ltd. reported in VSTI 2013 (Vol. 16) page-345 and the Division Bench judgment of the Tribunal, Kanpur in the case of Shree Road Lines Vishwakarma Industrial Area Jaipur & Paradey Electrical Pvt. Ltd. Vishwakarma Industrial Area Jaipur vs. Commissioner Sales Tax U.P. reported in 2013 N.T.N. (vol.51) (Tribunal) page 142, contended that although the declaration form was not available at the time of detention of the goods, yet on declaration form being produced before seizure order, the Court ordered for release without any security. The High Court has held that if the declaration form is produced in reply to the show-cause notice then seizure is not justified.
This Court after examining the provisions of the Value Added Tax Act made a pointed query from the learned counsel for the assessee as to whether under the provisions of the Value Added Tax Act it is mandatory that the goods which are brought within the State of Uttar Pradesh for being transported to a place outside the Uttar Pradesh must accompany transit pass at the time they enter into the State of Uttar Pradesh or not. The answer given is in affirmative. Therefore, under the Value Added Tax Act, it is mandatorily required that transit pass must be available with the consignment or must be available for downloading from the official website immediately before the goods actually enter into the State of Uttar Pradesh.
In the facts of the case the interception of the goods had taken place on 20th April, 2013 while the transit form produced had itself been generated only on 22nd April, 2013, which is clearly two days after the entry of the goods in the State of Uttar Pradesh. The generation of such transit pass in the opinion of the Court will not in any way dilute the mandatory requirements of the Value Added Tax Act as already noticed above. Therefore, in the facts of the case, this Court is satisfied that there is no illegality in the orders of seizure of the goods and the demand of security for release of the same.
The judgments relied upon by the learned counsel for the assessee are clearly distinguishable in the facts of the case, inasmuch as it has not been noticed in any of the judgments as to whether the declaration form itself had been generated after two days of the actual interception of the goods within the State of Uttar Pradesh, which is a fact having material bearing in the matter of seizure. Accordingly, this Court finds no ground to interfere with the orders impugned.
At this stage, learned counsel for the assessee submitted that since the other documents produced at the time of interception and in reply to the show cause notice qua the goods being brought within the State of Uttar Pradesh only for being transported to a place outside the State of Uttar Pradesh, have not been doubted, the amount of security demanded be reduced to the value of tax only.
Having examined the records of the present writ petition, in the facts of the case, it is desirable that the security as demanded from the assessee for release of the goods may be furnished as follows:
(a) security to the extent of 20% of the value of the goods may be furnished incash or through bank draft,
(b) for the remaining 20% of the of the value of the goods, security may be furnished by the assessee, which may be other than cash or bank guarantee to the satisfaction of the assessing authority.
With the aforesaid modification, the present revision is disposed of.
(Arun Tandon, J.)
Order Date :- 8.8.2013
Sushil/-
