TMI Blog2005 (8) TMI 369X X X X Extracts X X X X X X X X Extracts X X X X ..... ade within the time aforesaid, the respondents would be liable to pay interest on the sale price proceeds at the rate of 12 per cent per annum - Civil Appeal No. 5081 of 2005 - - - Dated:- 17-8-2005 - RUMA PAL AND LAKSHMANAN AR. JJ. K. Radhakrishnan, Senior Advocate (Krishnan and Pandeya and G. Prasad, Advocates, with him), for the appellant. Ms. Shobha Dixit, Senior Advocate (Kamlendra Mishra, A. Bhalla, R.K. Dubey and Ms. R. Singh, Advocates, with her), for the respondents. -------------------------------------------------- The judgment of the Court was delivered by RUMA PAL, J. Leave granted. 2.. This appeal has been preferred from an order passed by the High Court of Allahabad dismissing the appellant's writ petition. The appellant had asked for a direction on the respondents to hand over possession of 400 bags of gambier which had been detained on 20th August, 1999 and subsequently seized. 3.. The appellant carries on business in Mumbai. It sent the gambier to one M/s. Kamakhya Like (sic) Industries, Varanasi. A declaration form (form XXXI) issued under the U.P. Trade Tax Act, 1948 (referred to as "the Act") had been sent by the purchaser to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sai claiming to be a partner of the appellant submitted an application under section 13-A(6) of the U.P. Trade Tax Act, 1948 for release of the goods. On receipt of the application, the TTO-II who had issued the show cause notice and passed the order of seizure, went to Mumbai and made inquiries from the Sales Tax Officer there who, according to the respondents, certified that the said Arvind Desai was not a partner of the appellant. The TTO-II also found that there were no entries of money transactions relating to the purchase of the gambier in the bank accounts of the appellant in Mumbai. Incidentally, the partners of the appellant admittedly registered with the sales tax authorities, confirmed that Arvind Desai was a partner of the appellant-firm. 6.. On 8th October, 1999, an order was passed by the assessing authority under section 15-A(1)(o) against the proprietor of the purchaser holding that the gambier had been transported with the "pre-plan intention of tax evasion" and, therefore, penalty of Rs. 8 lakhs was imposed. However, it was only subsequently, on 21st October, 1999, that the Assistant Commissioner (Check-post), Raksa, relying on the evidence of the TTO-II regardi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8th October, 2000. 11.. There is some dispute as to whether the goods were formally released to the appellant or not. According to the appellant, when his agent went to take delivery of the goods the godown keeper left the premises and the goods were not released to him. The godown keeper sent a letter on 3rd November, 2000 to the appellant from the office of TTO, Sahayata Kendra, Raksa, Jhansi, to the following effect: "You are informed that your goods of 400 bags of gambier have been taken out of the Godown . Kindly come and take the goods. On 1-11-2000 at 6.30 P.M. there was sudden pain in my stomach and I had gone to fields to attend the call of nature and by the time I returned, you had already left."(sic). 12.. At the hearing, however, a register was produced by the respondents which purported to show that the goods had been released to the appellant's agent and had been signed for on 30th October, 2000. If the entry is correct there is no explanation why the godown keeper wrote the letter which speaks for itself. It is, therefore, undisputed that at least physical delivery of the goods was not made. 13. On 4th November, 2000, an order was passed by the TTO attachin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are still with the respondents. 16.. The respondents have submitted that the alleged purchaser had not appeared at any stage of proceedings and enquiry revealed that it was no longer an existing firm. According to the respondents no documents had been filed at any stage by the appellant in support of its claim of ownership to the gambier. It was further submitted that issue of title was pending in the revisional application filed by the appellant and the respondents from the order of the Tribunal dated 9th August, 2000. It was said that the documents which were produced by the appellant were interpolated and contradictory and that the appellant had not come to court with clean hands. 17.. The High Court, dismissed the application on the ground that the title in the goods had passed to the purchaser although the price for the goods had not been paid. It was also said that M/s. Kamakhya Lime Industries and M/s. Maa Kamakhya Lime Industries were one and the same and that therefore the outstanding dues of M/s. Maa Kamakhya Lime Industries could be recovered from the goods in question. The appellant filed an application for review of the judgment which was dismissed by the High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the goods were released formally to the appellant against security furnished by the appellant. Yet the last order of seizure in execution of the recovery certificates against the purchaser was issued on the basis that the goods had been released to M/s. Kamakhya Lime Industries. 22.. The submission of the respondents that the appellant had come to the Court with unclean hands is unacceptable. On the other hand the respondents have misdirected themselves by seeking to question the appellant's ownership in the property to the goods. That could not have been in issue because unless ownership of the gambier was with the appellant, no title could have been transferred to the purchaser by it. The enquiry conducted by the TTO as to the business of the appellant, the existence of its office in Mumbai, etc., was therefore not only uncalled for but self-defeating. 23.. It is true that the respondents have said that the two invoices of the appellant have been prepared bearing the same number but in respect of different quantities of gambier. It is however, nobody's case that the total of the two invoices did not tally with the number of bags in fact found on the truck. No material has b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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