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2017 DIGILAW 383 (TRI)

Ratan Sarkar v. State of Tripura

2017-10-24

S.TALAPATRA

body2017
JUDGMENT AND ORDER : Heard Mr. A. Bhowmik, learned counsel appearing for the petitioner as well as Mr. D. C. Nath, learned Addl. G.A. appearing for the respondents. 2. The petitioner, who is a registered dealer, purchased marble chips from one Inani Marbles, Kishangarh (Ajmer), Rajasthan on payment of Rs. 2,51,863/-. The payment was made from Agartala by RTGS from the State Bank of India, Agartala Branch-00002. Those marble chips were consigned to the transporter namely Jaipur Jorhat Transport Courier for transporting those materials to Agartala for their use in the reconstruction of a Government School. 3. But when this vehicle was to enter into the State of Tripura, the driver did not stop the vehicle in the Churaibari check post and did fail to disclose the taxable materials. As a result, the vehicle was chased and detained. Thereafter, the materials in the vehicle was seized by the order dated 03.01.2017 in case No. 207/CRB/2016-17 citing the grounds for seizure as non-declaration. 4. Mr. Bhowmik, learned counsel appearing for the petitioner has submitted that for purpose of importing those marble chips to the State of Tripura, the petitioner obtained the Form-XXVI disclosing those materials. The taxable goods are declared in Form-XXVI in observance of Section-67 of the Tripura Value Added Tax Act, 2004 as the said Section- puts an obligation while taxable good is imported into the state of Tripura, that such import shall be disclosed in the first check post in the State of Tripura. Churaibari is the first check post in the gateway to enter into the State of Tripura, but no declaration was made by the driver. When the materials were seized, it is apparent from the record that no copy of the Form-XXVI was submitted to the officer who detained the vehicle and seized the taxable materials. 5. Mr. Bhowmik, learned counsel appearing for the petitioner has submitted a copy of the Form-XXVI that had been enclosed with the representation dated 27.01.2017 filed to the Superintendent of Taxes, Churaibari Modernized Check post. But the said authority did not release the materials as seized under Case No. 60/CRB/2016-17. The petitioner was apprised while disposing the representation by the communication dated 04.02.2017, Annexure-7 to the writ petition that the petitioner should approach the higher forum/court ‘for the release order of the goods’. 6. But the said authority did not release the materials as seized under Case No. 60/CRB/2016-17. The petitioner was apprised while disposing the representation by the communication dated 04.02.2017, Annexure-7 to the writ petition that the petitioner should approach the higher forum/court ‘for the release order of the goods’. 6. Being aggrieved by that said order, the petitioner has approached this Court under Article-226 of the Constitution of India alleging violation of the safeguards provided under Section-67 of the Tripura Value Added Tax Act, (TVAT Act in short). The respondents have filed the reply and categorically stated that during search of the vehicle it was found that the vehicle was carrying taxable goods viz Marble chips. The driver of the vehicle was asked to produce valid documents for importing taxable goods. But, he could not show or produce any valid document. Thus, it was clear to the seizing officer that the intention of the vehicle was to evade tax. For non-declaration of the goods, the inspector of Churaibari check post seized 750 bags of marble chips value of which has been estimated by them at Rs. 1,87,850/-. The respondents have admitted that one representation was received and disposed by the order as referred above. 7. Mr. D.C. Nath, learned Addl. G.A. appearing for the respondents has submitted that violation of the statutory obligation is manifest on the face of the records and as such, there is no illegality in the seizure order dated 04.02.2017. Section-67 of the TAVT Act has obligated transporters of the taxable goods to disclose the taxable goods being imported into, at the said check post. The driver or the person in-charge of vehicle or the carrier of goods shall carry with him the records of the goods including challan, bills of sale or dispatch memos and the prescribed declaration form duly filled in and signed by the consignee or the transporter of the goods carried. 8. The vehicle shall be stopped at the barrier at every check post set up under sub-Section-(1) of Section- 67 of the TAVT Act, 2004 and the documents shall be produced in support of the said transportation. The vehicle shall be subject to inspection for purpose of search in order to authenticate whether there is any contravention of the said provision. 9. The vehicle shall be subject to inspection for purpose of search in order to authenticate whether there is any contravention of the said provision. 9. For this purpose, the officer in-charge of the check post is empowered under Sub-Section- 3 of Section-67 of the TAVT Act. They are entitled to take into possession or to stop the movement of the goods whether seized or not if it is found that the transportation was in contravention of Clause-(a) of Sub-Section-(2) or they have submitted false or forged documents. In the event of contravention, the importer will be exisible to the tax leviable with penalty, equal to double the amount of the tax, or Rs.1,000/- whichever is higher. 10. During the pendency, the owner/importer can approach for release of the said materials. Sub-Section(7) of Section-67 of the TAVT Act provides as under: “The officer-in-charge or the officer empowered under sub-Section-3 may release the goods to the owner of the goods or to any person duly authorized by such owner on payment of the tax and penalty imposed under sub-Section-5.” 11. Where the driver or person in charge of the vehicle or the carrier is found guilty for violation of the provisions of Sub-Section-2, subject to the provisions of Clause-(a) of sub-Section-(4), the officer-in-charge of the check post or the officer empowered under sub-Section-(3) may detain such vehicle or carrier and on affording an opportunity of being heard can impose such penalty not exceeding ten thousand rupees. 12. But Mr. Bhowmik, learned counsel appearing for the petitioner has in order to impress upon the Court stated that if any breach had at all been committed, it has been committed by the driver of the vehicle who was engaged, not by the petitioner but by the said transporter. Section-68 of the TAVT Act, as referred above, is not about the release of the goods but of disposal of the seized goods and as such, is not very relevant in the present context. 13. This Court in a previous decision has already observed that whenever goods are seized, there should be a formal notice to the owner of the goods by providing him opportunity to make his submission to the officer-in-charge or the Superintendent of Taxes who is exercising the power of the Commissioner of Taxes there. 13. This Court in a previous decision has already observed that whenever goods are seized, there should be a formal notice to the owner of the goods by providing him opportunity to make his submission to the officer-in-charge or the Superintendent of Taxes who is exercising the power of the Commissioner of Taxes there. But from the order dated 04.02.2017 as challenged in the writ petition, it clearly appears that there was no opportunity of being heard and the order that has been passed has surprised this Court as there was no consideration at all over the claim as advanced by the petitioner. 14. In view of this, the Superintendent of Taxes, Churaibari check post is directed to give the petitioner an opportunity to raise his pleas in respect of release of the goods or any other pleas relevant in respect of the seizure and release of those materials. 15. Hence, the petitioner shall immediately file a copy of this order to the Superintendent of Taxes, Churaibari check post, North Tripura and on having received the copy of this order, the Superintendent of Taxes, Churaibari check post shall appoint a date for hearing when the petitioner shall raise all his pleas and submit the documents that he would like to rely on. Thereafter, the Superintendent of Taxes shall pass an appropriate order. In the interim, this Court is inclined to direct further that the seized materials shall forthwith be released to the petitioner, a registered dealer under TAVT Act, on furnishing a security of Rs. 40,000/- to the satisfaction of the Superintendent of Taxes, Churaibari Check post. Having been satisfied with the nature of the security, the Superintendent of Taxes, Churaibari check post, North Tripura, shall release the materials in favour of the petitioner as this Court is prima facie satisfied that the petitioner is the owner of those goods. In view of what has been observed above, this writ petition stands allowed to the extent as indicated above. There shall be no order as to costs. A copy of this order be furnished to Mr. D. C. Nath, learned Addl. G.A. appearing for the respondents.