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2014 (11) TMI 924 - UTTARAKHAND HIGH COURTRelease of trucks - Maintainability of appeal before tribunal - Uttarakhand Value Added Tax Act, 2005 - truck was not possessing relevant documents and failed to comply with the procedures - Held that:- under Section 43(8), there is a clear discretion vested with the authority to exercise the power to order release, as provided by it. We are fortified in the said view when we notice that the lawgiver mandates that, whenever power is exercised by giving a direction, it must be for reasons to be recorded. The provision containing the limitation on the exercise of power that there must be reasons recorded, itself, shows that the Legislature was anxious to protect the interest of the revenue. The power was, no doubt, lodged with the superior officer; but, the Legislature has taken great care to see that the power is not exercised in a routine manner. It unerringly points out that the power under Section 43(8) is a purely discretionary power. No doubt, any discretion vested with any public officer must be exercised bona fide and according to well established principles relating to exercise of discretion by statutory authorities. The Legislature has used the word "may" in Section 43(8) and that, again, goes a long way to persuade us to hold that the power is discretionary. The legislative intent was that an appeal will lie against a direction for release ordered under Section 43(8) and, when it is refused, no appeal will lie under Section 53. It may not be out of place to record that, subsequently in the year 2012, Section 56(b), itself, was amended by the Legislature and, after the amendment in 2012, Section 56(b) does not contain the prohibition against an appeal or revision against action under Section 43(8). Therefore, it would appear to be an error, which was probably noticed by the Legislature as Section 53 and Section 56(b) were completely inconsistent with each other. Incidentally, we may notice in the Explanation to Section 53 that the person, who could file the appeal, includes the Commissioner. But, again, we notice curiously that it is in relation to an order and not in relation to a direction. But, nonetheless, we would think that, in view of the word "direction" under Section 43(8), the Legislative intent is clear that it is only a direction under Section 43(8) ordering release of the goods, which would be appealable. The Revision is to be allowed and the same is allowed. We answer the question of law in regard to the maintainability of the appeal in favour of the revisionist. The impugned order, therefore, cannot be sustained on the ground that the appeal was not maintainable. Therefore, the impugned order is set aside. - Decided in favor of revenue.
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