SRI VENKATA SAASTA JEWELLERS v. COMMERCIAL TAX OFFICER (INTELLIGENCE), VIZIANAGARAM AND ANOTHER.
2002-04-25
G.ROHINI, MOTILAL B.NAIK
body2002
DigiLaw.ai
ORDER DR. MOTILAL B. NAIK, J. The petitioner, who is a merchant in gold and silver ornaments having business establishment in Parvathipuram Town in Vizianagaram District, invoking jurisdiction under article 226 of the Constitution of India approached this Court assailing the procedure adopted by the respondents on March 8, 2002 while searching his business premises and seizing the gold and silver articles from his business premises and also initiation of confiscation proceedings. According to the learned counsel for the petitioner, the business premises of the petitioner were inspected on March 8, 2002 by the respondents and it continued the whole of the night of March 8, 2002 and three orders have been passed on the same day, viz., relating to the seizure of the gold and silver articles, a notice proposing to confiscate the articles seized and the confiscation order. The learned counsel further submits that though the respondents are entitled to search and seize the articles, in so far as passing an order of confiscation is concerned, as provided under section 28(6) of the A.P. General Sales Tax Act, 1957 (hereinafter referred to as "the Act"), before passing a confiscation order, a notice has to be given to the petitioner giving an opportunity to him to state his case. He further states that the business premises of the petitioner was inspected on March 8, 2002, but the respondents have not followed the procedure contemplated under section 28(6) of the Act in passing the confiscation order and therefore, the order of confiscation dated March 8, 2002 is liable to be set aside only on the ground that no opportunity was given to the petitioner before passing the order of confiscation. We have also heard the learned Special Government Pleader for Taxes appearing on behalf of the respondents, who justified the order of confiscation contending that on March 8, 2002 the respondents searched the business premises of the petitioner, seized the gold and silver articles and on the same day, the confiscation order was passed basing on a statement filed by the petitioner before the authorities on the same day, i.e., March 8, 2002 indicating that he has no objection for passing the confiscation order and therefore, no procedural irregularity has been committed by the respondents as provided under section 28(6) of the Act in passing the confiscation order.
He has also drawn our attention to the subsequent proceedings dated March 9, 2002 through which the confiscation order dated March 8, 2002 has been modified with regard to the confiscation of the seized articles giving time to the petitioner till March 15, 2002 to submit his explanation and therefore, the allegation made by the petitioner that he has not been given any opportunity and the respondents have violated the procedure as contemplated under section 28(6) of the Act is far from reality and prays for dismissal of the writ petition. In the light of the submissions made by both the counsel, the point for consideration before us is, whether the order dated March 8, 2002 passed by the respondents relating to confiscation of the articles, which were seized on March 8, 2002, could be sustainable in the background of a corrigendum issued by the respondents on March 9, 2002. Admittedly, the search and seizure was held on March 8, 2002 and the notice proposing to confiscate the seized items was also issued on March 8, 2002 and in fact the confiscation order was also passed on March 8, 2002 itself. The Special Government Pleader for Taxes supports the confiscation order passed by the respondents on March 8, 2002 on the ground that the petitioner himself filed a representation stating that he has no objection for confiscation of the seized articles. It is difficult for us to accept this submission inasmuch as though a representation was filed by the petitioner before the authorities stating that he has no objection for confiscation of the seized articles, it must be inferred that such a statement could have been given by the petitioner under compelling circumstances having left with no option. Therefore, the respondents cannot place reliance on such a statement obtained from the petitioner in such circumstances. We are of the view that the so called representation pressed into service by the learned Special Government Pleader cannot be used against the petitioner. Coming to the other limb of submission that a corrigendum was issued on March 9, 2002 by the respondents giving time to the petitioner till March 15, 2002 for filing his explanation and therefore, the order of confiscation does not survive, without any hesitation, we hold that this step taken by the respondents is also not in tune with the procedure contemplated.
The learned Special Government Pleader is unable to show any provision in the Act to the effect that once an order of confiscation is passed by a particular authority, that authority has power to revise or modify the same. In this case, the respondents issued a corrigendum on March 9, 2002 revising the confiscation order dated March 8, 2002. In the absence of any provision in the Act which empowers the authority to revise the confiscation order, we hold that the consequential order dated March 9, 2002 (corrigendum) is without authority and cannot be sustained. In the light of our discussion in the foregoing paragraphs, the order passed on March 8, 2002 confiscating the seized articles cannot be sustained and therefore, we set aside the same. The resultant effect is that the respondents are bound to consider the objections that would be filed by the petitioner and then decide as to whether confiscation order could be passed or not. In this background, we grant two weeks time to the petitioner from today to place such objections before the appropriate authority pursuant to the notice dated March 8, 2002, on which basis the appropriate authority shall enquire into the matter as to whether there are any grounds for confiscation of the seized articles and pass appropriate orders according to law. The writ petition is accordingly allowed in the above terms. No costs. Petition allowed.