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2015 DIGILAW 677 (GUJ)

Alliance Fibers v. State of Gujarat

2015-07-08

A.J.DESAI, ABDULLAH GULAMAHMED URAIZEE

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Order A.J. Desai, J. 1. Learned AGP, Ms. Vacha Desai waives service of notice of Rule. 2. By way of present petition under Articles 14, 19(1)(g), 226 and 265 of the Constitution of India, the petitioner has challenged an order dated 26/5/2015 passed by the respondent No. 3 under the provisions of sections 68 & 69of the Gujarat Value Added Tax Act, 2003, by which, the goods belonging to the petitioner came to be seized on the ground that the petitioner was in default in payment of VAT to the tune of Rs. 1,76,48,695/-. 3. It was argued by learned advocate for the petitioner that after receiving the order of seizure of the goods, the petitioner preferred the petition mainly on the ground that the respondents authorities have power to seize the goods only on the grounds enumerated under sections 68 & 69 of the Act whereas in the present case the grounds other than provided under section 68 have been considered for seizure of the goods. 4. He further argued that even assessment order with regard to the alleged default in payment of VAT in earlier assessment, the period of limitation did not expire and before that goods have seized and thereto on the said ground, the seizure is illegal. He would further argue that the appellant has already preferred an appeal challenging recovery made by the respondent authority for the aforesaid amount. 5. Mr. Parikh, learned senior advocate appearing for the petitioner would submit that considering the above aspect, ad-interim-relief was granted by earlier order dated 5/6/2015 and releasing the goods pursuant to filing of undertaking before this Court and accordingly, undertaking has been filed on 6/6/2015 by one Mr. Ashwinbhai G. Patel before this Court. 6. He therefore, would submit that since the appeal is pending and kept for hearing, the petitioner shall appear before the authority and shall cooperate with the authorities. He therefore, would submit that considering that aspect the petition requires consideration. 7. On the other hand learned AGP Ms. Desai has opposed this petition and has taken us through affidavit-in-reply filed by the concerned officer and submitted that under section 44 and 45 of the Act the authority has power to seize the goods if the tax has not been paid by the concerned authorities. Therefore, the petition be dismissed. 7. On the other hand learned AGP Ms. Desai has opposed this petition and has taken us through affidavit-in-reply filed by the concerned officer and submitted that under section 44 and 45 of the Act the authority has power to seize the goods if the tax has not been paid by the concerned authorities. Therefore, the petition be dismissed. However, she would submit that considering the peculiar facts of the case i.e. filing of the appeal within period of limitation, if the petitioner is directed to remain present before the appellate authority same shall be considered. 8. We have heard learned advocates appearing for the respective parties. We are of the opinion that the impugned order is passed on the ground that the petitioner was in default of payment of tax though the order impugned clearly indicates that the same has been passed under section 68 & 69 of the Act. It is pertinent to note that assessment order is passed on 31/3/2015 however, the appeal has been preferred by the petitioner on 27/5/2015 i.e. within period of 60 days provided under the Act. It is also pertinent to note that goods are already released pursuant to the order passed by this Court. It is pertinent to note that the authority had seized the goods before expiry of period of limitation prescribed under section 73(4) of the Act. Therefore, in our view, the authority could not have seized the goods under the provisions of section 68 and 69 of the Act. Therefore, we accept the petition. The order passed by the respondent No. 3 dated 26/5/2015 is hereby quashed and set aside. 9. However, it is hereby made clear that the petitioner shall act according to his undertaking filed before this Court on 6/6/2015 and shall cooperate with hearing of the petition. The petitioner shall appear before the authority for hearing of the appeal on 13/7/2015 and thereafter shall co-operate with the hearing of it. 10. Rule is made absolute to the aforesaid extent. In Favour of Assessee.