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Gujarat High Court · body

2016 DIGILAW 628 (GUJ)

Swiss Deziner Tiles v. State of Gujarat

2016-03-17

G.R.UDHWANI, HARSHA DEVANI

body2016
ORDER : Harsha Devani, J. 1. Rule. Mr. Swapneshwar Goutam, learned Assistant Government Pleader waives service of notice of rule on behalf of the respondents. 2. This petition under Articles 226 and 227 of the Constitution of India is directed against the memo dated 28th February, 2016 issued by the third respondent - Commercial Tax Officer (I), Unit 20, Ahmedabad whereby the truck of the petitioner together with the goods has been seized in exercise of powers under sub-section (4) of section 68 of the Gujarat Value Added Tax Act, 2003 (hereinafter referred to as "the GVAT Act"). 3. The facts stated briefly are that the petitioner is engaged in the business of trading in ceramic tiles. The petitioner received a purchase order from M/s. Bhavya Tiles, Vadodara for supply of 790 boxes of ceramic tiles at the rate of Rs. 320/- per box. The petitioner sent the goods from Morbi to Vadodara through truck No. RJ-07-GC-1339. When the truck was passing through Naroda GIDC near Ahmedabad, the same came to be detained by the third respondent at 1 o'clock and a memo No. 1 dated 28th February, 2016 came to be issued to the driver of the truck on the ground that he did not submit the required documents for the ceramic goods in the truck. Being aggrieved by the action of the respondents in detaining the truck together with the goods, the petitioner has approached this court by way of the present petition. 4. Mr. Bhargav Karia, learned advocate for the petitioner assailed the action of the respondents by submitting that such action has been taken under sub-section (4) of section 68 of the GVAT Act. Referring to the provisions of sub- section (4) of section 68 of the GVAT Act, it was pointed out that powers under the said sub-section are vested in the officer-in-charge of the check-post or the barrier as contemplated under sub-section (1) thereof. It was pointed out that under sub-section (1), if the State Government considers that with a view to prevent evasion of tax at any place or places in the State, it is necessary to do so; it may by notification in the Official Gazette, direct that such number of check-posts shall be set up or such number of barriers shall be erected at such places as may be specified in the notification. It was submitted that the truck in question has been stopped at a place other than a check-post or barrier as contemplated under sub-section (1) of section 68 and that the third respondent not being an officer-in-charge of the check-post or barrier as contemplated under sub-section (4) of section 68 of the GVAT Act, the impugned action of the respondents is without authority of law and, therefore, the impugned seizure memo deserves to be quashed and set aside and the respondents are required to be directed to forthwith release the truck together with the goods. 5. On the other hand, Mr. Swapneshwar Goutam, learned Assistant Government Pleader appearing on behalf of the respondents, reiterated the averments made in the affidavit-in-reply filed on behalf of the third respondent. It was submitted that the truck in question was stopped for the purpose of inspecting the same and the driver was asked to produce all the documents pertaining to the goods contained in the truck, however, the driver did not possess the requisite documents and it is in these circumstances that the impugned memo came to be issued. It was submitted that in view of the provisions of section 68 and section 70 of the GVAT Act, the respondents are duly empowered to seize the goods where the driver of the vehicle in question does not carry with him the requisite documents and that therefore, the petition being devoid of merits, deserves to be dismissed. It was submitted that the detained truck and the goods seized can be released only after payment of tax and penalty and that if in case the court is inclined to direct release of the goods and the truck, the petitioner may be put to conditions of deposit of tax and penalty. 6. This court has considered the submissions advanced by the learned advocates for the respective parties. A perusal of the impugned seizure memo reveals that the same has been issued in exercise of powers under sections 68, 69 and 70(A) of the Gujarat Value Added Tax Act. The impugned order of detention and seizure of the truck and the goods has been passed in exercise of powers under Sub-section (4) of section 68 of the GVAT Act. The impugned order of detention and seizure of the truck and the goods has been passed in exercise of powers under Sub-section (4) of section 68 of the GVAT Act. Sub-section (4) of section 68 of the GVAT Act inter alia provides that if the officer-in-charge of the check-post or barrier is of the opinion that if the driver or other person in charge of a vehicle, boat or animal carrying goods does not make a declaration or if he makes a declaration, he does not keep a copy thereof with him as required by clause (c) of sub-section (3), he may, after recording the reasons, seize such goods and detain the vehicle and give receipt thereof to the person from whose possession or control, the goods are seized. Sub-section (1) of section 68 empowers the State Government to direct setting up of check-posts and erection of barriers at such places as may be specified by the notification in the Official Gazette. In the facts of the present case, it is an admitted position that the truck had been detained at a place other than the check-post or barrier as contemplated under sub-section (1) of section 68 of the GVAT Act. Evidently therefore, the respondent who passed the order of seizure and detention of the truck and goods was not an officer-in-charge of a check-post or barrier as contemplated under sub-section (4) of section 68 of the GVAT Act. Under the circumstances, the impugned action of the respondents in detaining and seizing the truck with the goods in question is clearly without any authority of law, and therefore, cannot be sustained. 7. The petition, therefore, succeeds and is accordingly allowed. The impugned seizure memo No. 1 dated 28th February, 2016 issued by the third respondent (Annexure 'D' to the petition) is hereby quashed and set aside. The respondents are directed to forthwith release the truck bearing No. RJ-07-GC-1339 together with the goods contained therein. Rule is made absolute accordingly with no order as to costs.