Metalman Pipe Mfg. Co. Ltd. v. Commissioner of Sales Tax
2001-01-18
A.M.SAPRE
body2001
DigiLaw.ai
Judgment ( 1. ) BY filing this writ under Article 226/227 of the Constitution of India, the petitioner prays for following reliefs : (a) Issue a writ of mandamus directing the respondents to release the goods forthwith without levy of penalty. (b) To declare that the detention and seizure of the goods by the authorities concerned was illegal, bad in law and without jurisdiction and the petitioner is entitled to the release of goods. (c) To issue a writ of certiorari or any other writ, direction or order requiring the respondents to certify this honourable court, all the records of the proceedings in which the order of seizure, if any, is passed and after examining the legality and/or propriety, quash the same. (d) That to issue a writ of certiorari or any other writ, direction or order requiring the respondents and in particular the respondent No. 2 (Check-post Officer) to certify to this honourable High Court all the records of the proceedings in which the impugned notices (annexures P/9 and P/10) proposing penalty is issued and after examining the legality and/or propriety thereof, quash the same. (e) To issue a writ of prohibition and/or any other writ direction or order forebearing the respondents from taking any action for levy of penalty under the provisions of Section 29-A of the M. P. General Sales Tax Act ; and (f) To issue a writ of mandamus restraining the respondents from enforcing the order of seizure or any other order for detaining and seizing the goods. ( 2. ) FACTS in so far as they are relevant for the disposal of the petition need mention infra. ( 3. ) PETITIONER No. 1 a limited company registered as such under the Companies Act, 1956 is engaged in the business of manufacture of steel tubes and pipes. It is having its manufacturing unit at 17/99, Suklia, in Industrial Area, Indore. Petitioner No. 2 is the transporter and is engaged in the business of transporting goods. On December 17, 1992, at Sendhwa Check-post (Naka), specially set up by State under Section 29-A of Madhya Pradesh General Sales Tax Act, 1958, the sales tax authorities (Check-post Officer) intercepted two trucks bearing No. MPO9 D 6584 and MP09 D 6194. These trucks were carrying goods called "hot rolled coils".
On December 17, 1992, at Sendhwa Check-post (Naka), specially set up by State under Section 29-A of Madhya Pradesh General Sales Tax Act, 1958, the sales tax authorities (Check-post Officer) intercepted two trucks bearing No. MPO9 D 6584 and MP09 D 6194. These trucks were carrying goods called "hot rolled coils". On the inspection of the documents produced by the driver of the truck such as form of builty, delivery challan, etc. , and also on inspection of the goods kept in the trucks, it was noticed that the descriptions mentioned in documents do not tally with the goods kept in the trucks. On being satisfied on the basis of documents and the actual verification of the goods kept in trucks for being carried, and after recording the statement of the driver, and also after granting opportunity to petitioner as per annexure R/5 (order sheets) the check-post officer (Sales Tax Officer) issued 3 show cause notices (annexure P/7) and (annexure P/9) on December 25, 1992. So far as show cause notice, i. e. , annexure P/7 was concerned, it was issued under Section 29-A (8) of the Act. It was said in the said show cause notice that on an inspection being carried out of truck No. MP09 D 6584, on December 17, 1992 at about 11 at check-post Naka, Sendhwa, it was noticed that declarations relating to goods kept in the vehicle were incomplete. It was therefore, said that after inspection and verification of goods, the same are to be seized. As regards the other notice dated December 25, 1993 (annexure P/9) issued under Section 29-A (11) ibid. it was, inter alia, alleged that on inspection and verification of goods kept in the truck No. MPO9 D 6584, it is noticed that description of goods mentioned in the documents and what is mentioned in the goods do not tally and hence why a penalty of Rs. 30,000 be not imposed on the petitioner. The petitioner was asked to show cause and file reply by January 14, 1993. Similar was the third show cause notice (annexure P/10) issued to petitioner asking him to show cause in relation to the goods stored in truck No. MPO9 D 6194 proposing imposition of penalty of Rs. 30,000 and asking the petitioner to submit a reply till January 19, 1993. It is these 3 notices which are impugned in this writ.
Similar was the third show cause notice (annexure P/10) issued to petitioner asking him to show cause in relation to the goods stored in truck No. MPO9 D 6194 proposing imposition of penalty of Rs. 30,000 and asking the petitioner to submit a reply till January 19, 1993. It is these 3 notices which are impugned in this writ. In other words, instead of submitting to the show cause notice and filing reply to these notices, the petitioner filed this writ and has questioned their legality and validity. ( 4. ) THE State has filed the return and supported the impugned action by filing documents. ( 5. ) I have heard Mr. P. M. Choudhary, learned counsel for the petitioners and Mr. P. Verma, learned counsel for the respondents. ( 6. ) ASSAILING the legality of the impugned notices and rather its very issuance, learned counsel for the petitioner argued that there was absolutely no case made out for issuance of any of these notices by invoking Section 29-A ibid. It was his submission that neither there was any material nor case as is required to be made out for invoking the powers of Section 29-A ibid. It was submitted that petitioner having complied with all the requirement of Section 29 (4) and (5) and having satisfied the check-post officer about the identity of the goods in question and the supporting documents filed, there did not arise any case either for seizure of the goods or even for imposition of penalty under Section 29-A of the Act. Learned counsel maintained that even check-post officer had no material with him on the basis of which he could find and then record his satisfaction as contemplated under Section 29-A (7) and (8) of the Act. This requirement according to learned counsel, for the petitioner, was sine qua non and the same being not available, it goes to the root of the matter in quashing the impugned notices. These were the main submissions of the learned counsel for the petitioner. ( 7. ) IN reply learned counsel for the respondent-State has supported the impugned action and has prayed for the dismissal of the writ. ( 8.
These were the main submissions of the learned counsel for the petitioner. ( 7. ) IN reply learned counsel for the respondent-State has supported the impugned action and has prayed for the dismissal of the writ. ( 8. ) HAVING heard the learned counsel for the parties and having perused the entire record of the case, I find no merit in the writ and therefore, it has to be dismissed thereby upholding of the impugned notices. ( 9. ) IN my opinion, the check-post officer was justified in invoking his power conferred on him under Section 29-A (7) and (8), ibid. The use of the word "finds" in Sub-sections (7) and (8) of Section 29-A cannot be equated with the word "satisfaction" used in Sub-sections (10), (11), (12) and (13) of Section 29-A. In other words, the requirement of Section 29-A (7) and (8) for invoking jurisdiction is not the same as is required for other Sub-sections of Section 29-A ibid. In the present case, the check-post officer has yet to record his satisfaction so far as case falling under Sub-section (10) onwards is concerned. ( 10. ) IN my opinion, there was enough material on record for the check-post officer to "find" contravention of Sub-sections (7) and (8 ). As observed supra, on an inspection of material and after recording of statement of the driver (annexure P/10) and after examining the record and also after granting adequate opportunity to the petitioner as is clear from the order sheets of the case (annexure R/5), the check-post officer was fully justified in seizing the goods and call upon the petitioner to show cause why penalty be not levied. The fact that the description mentioned in the documents tendered for inspection do not tally with the goods kept in trucks was sufficient to attract the rigour of not only Sub-section (7) but (8) as well for seizing the goods and proceeding ahead for taking further action of imposing penalty as contemplated under other Sub-sections of Section 29-A ibid. ( 11. ) THIS is not a case as attempted to be argued by the learned counsel for the petitioner of a no material on record for invoking Sub-sections (7) and (8 ). It is also not a case of inadequate material nor it is a case of not granting any opportunity before impugned action is initiated.
( 11. ) THIS is not a case as attempted to be argued by the learned counsel for the petitioner of a no material on record for invoking Sub-sections (7) and (8 ). It is also not a case of inadequate material nor it is a case of not granting any opportunity before impugned action is initiated. It is a case where the check-post officer has actually found the material for proceeding ahead and despite giving an opportunity to the petitioner (annexure R/5), they failed in their attempt to satisfy the check-post officer not to proceed. ( 12. ) THIS Court in its writ jurisdiction cannot be called upon to examine the adequacy of the material or to examine the correctness of the finding of Check-post Officer for invoking his power under Subsections (7) and (8) of Section 29-A ibid. Once the Check-post Officer finds that material to proceed under Sub-sections (7) and (8) is available then the authority gets jurisdiction to issue notice to transporter. The writ court will not then interfere in such discretion exercised by Check-post Officer. ( 13. ) IN view of the aforesaid discussion, I do not find any merit in the writ. It is accordingly dismissed. As a consequence of dismissal of the writ, the interim stay granted stands vacated. The respondent No. 2 may proceed with the proceedings initiated pursuant to impugned show cause notices and complete the proceedings one way or other on its merit after giving due opportunity to the petitioner to file reply (if not so far filed) and then pass final order keeping in view the provisions of the Act applicable to the controversy involved in show cause notices and will decide whether a case for imposition of penalty is made out on facts or not. Let this be done within six months from the date of this order. No cost.