TMI Blog2005 (3) TMI 735X X X X Extracts X X X X X X X X Extracts X X X X ..... grounds of seizure were stated as follows: 1. The dealer was carrying by truck No. RJ-07G-4874 Assam chikni supari which costs Rs. 60 per kg. on average whereas, he has shown the same as Assam supari in his Bill Nos. 20, 21, 19 dated March 17, 2003 showing the cost at Rs. 12.52 per kg. on average such goods are under-valuation. 2.. The dealer claimed that the dispatch note was not compulsory as per judgment given by the honourable Gauhati High Court in which case the road challan should have been duly countersigned by the concerned Superintendent of Taxes and which was absent in this case. Oral. 3.. Further the dispatch note No. 026685 of Book No. 25068 accompanied with documents was also not duly filled up as to the name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found in section 46(2)(b) and (c) of the Act. Reading the provisions of section 46(2)(b) of the Act, learned counsel has contended that the power of seizure can be exercised only if the goods in question are found not properly accounted for or if the authority has reason to suspect that evasion of tax payable under the Act may take place in respect of the goods. Placing the provisions contained in sub-clause (2)(c) of section 46, learned counsel for the petitioner has contended that the power to impose penalty can be exercised after giving of a reasonable opportunity and only in situations where the carrier or the bailee of the goods fail to satisfy the concerned authority regarding the proper accounting of goods. According to Dr. Saraf, l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s mentioned in the bills/invoices will not make the same unaccounted for. The necessary conditions precedent to the exercise of power of seizure and levy of penalty, therefore, according to learned counsel for the petitioner, is non-existent in the present case. Learned counsel has further argued that the other grounds mentioned in the seizure memo for taking the view that the goods were not accounted for, i.e., that the road challans and despatch notes were not countersigned and filled up are not valid requirements of the law inasmuch as there is no provision in the Act which requires the road challans to be countersigned and further this Court in a decision reported in [2003] 129 STC 229; (2002) 3 GLR 535 [Bajrangpur Tea Company (P) Limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccounted for, unless the sale price thereof is also correctly mentioned in the invoices. As in the instant case the supari in question was grossly under-valued disclosing an attempt at evasion of taxes, learned Additional Advocate-General has contended that the power of seizure and imposition of penalty has been rightly and correctly exercised. 4.. The rival submissions advanced on behalf of the parties have received the due and anxious consideration of the court. What must be emphasised at the outset is that the Act contemplates exercise of different species of power at different stages leading to the assessment of levy and collection of tax and what is to be exercised by the assessing authority at the stage of final assessment, are pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of taxes, the manner and extent of such exercise must vary. In case of a registered dealer if the total quantity of goods in stock or in transit are identifiable and the variety thereof is also known, to hold that the goods are not properly accounted for merely because there is a difference of opinion as to the sale price thereof, in the considered view of the court, would be doing violence to the scheme contemplated by the Act. Not only that, it would be inherently dangerous to read any such conferment of power at the stage of seizure in view of the possibility of abuse and misuse and it would be far more reasonable to understand such a conferment of power to have been made by the Legislature at the stage of completion of the quasi-judici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to the respondent-authority and therefore this Court must declare the seizure as well as the penalty imposed to be unsustainable in law. 6.. In so far as the tax levied is concerned, little argument is required to persuade the court that the stage for levy of tax cannot be the stage of seizure of the goods. For the same reason the levy of tax imposed by order dated March 20, 2003 shall, accordingly, stand set aside. 7.. As the petitioner admittedly has paid the amount of Rs. 1,35,168 on account of tax and assessment of tax for the relevant period is yet to be completed, the payment of tax by the petitioner, under orders of this Court, shall be subject to such adjustment as may be found due at the time of completion of the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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