9911796707
TMI Blog2006 (11) TMI 580X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent No. 4, the Assistant Excise & Taxation Commissioner, I.C.C. (Export), Mehmadpur (Shamboo), District Patiala. Case set out in the petition is that the petitioners are dealers, registered under the provisions of the Punjab Value Added Tax Act, 2005 (for short, "the Act") and engaged in the manufacture and sale of mink blankets. The petitioner sent a consignment of mink blankets on September 2, 2005 under an invoice addressed to a Kota dealer. When the consignment was being transported from Jalandhar--place of business of the petitioners to the place of consignee at Kota, the goods were intercepted by respondent No. 3 on the ground that goods were taxable but no tax had been charged in the bill and thus there was an attem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mad) and State of A.P. v. Goodyear India Ltd. [1989] 74 STC 47 (AP). Thus, on behalf of the petitioners, the contention raised is that there could be no question of attempt at evasion where arguable contention was being put forward after producing requisite documents and making full and effective disclosure of the facts without any mis-declaration, misdescription or concealment. It is submitted that the said provision is not meant to be invoked in such a situation at all and invocation of the jurisdiction in such a case is colourable exercise of power and not permissible under the law. In the reply filed, objection regarding maintainability of the writ petition at this stage, in view of the availability of alternative remedies, was raise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erial No. 59 to the following effect: "Blankets made of shoddy yarn and shawls." and Schedule 'B' was also amended at entry 5 to the following effect: "Bed sheets, pillow covers and other made ups, but excluding blankets made of shoddy yarn and shawls". We have considered the rival contentions and perused the record. The question for consideration is whether a case was made out for invoking jurisdiction conferred under section 51 of the Act for detaining goods being transported to evade tax for which penalty of 30 per cent to 50 per cent of the value of goods was provided and whether bar of availability of alternative remedy ought to be applied. As regards the objection as to availability of alternative remed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a substitute for ordinary assessment or penalty as separately provided for under the Act. Exercise of power may sometime be overlapping and mere alternative procedure is not conclusive for not exercising the said powers, where it is clear that either there is evasion there being deficiency in documents, inaccurate declaration having been made about description, value and contents of goods or otherwise but where there may be bona fide dispute about interpretation of law, about taxability or otherwise, summary power of imposing penalty at the check-post is not intended to be exercised. In Xcell Automation [2007] 5 VST 308 (P & H), after referring to the judgments in Check-Post Officer, Coimbatore v. K.P. Abdulla and Bros. [1971] 27 STC 1 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [2001] 124 STC 611 (SC); AIR 2001 SC 3076, Commercial Tax Officer v. Swastik Roadways [2004] 135 STC 1 (SC); [2004] 3 SCC 640 (SC), A.B.C. (India) Ltd. v. State of Assam [2005] 142 STC 88 (SC); [2005] 6 SCC 424 (SC) and Krishna Bus Service Pvt. Ltd. v. State of Haryana AIR 1985 SC 1651 (provisions for records to be maintained by carrying and forwarding agents and detention of transport vehicles); Comptroller and Auditor General of India, Gian Prakash, New Delhi v. K.S. Jagannathan AIR 1987 SC 537, Lucknow Development Authority v. M.K. Gupta AIR 1994 SC 787, Tata Cellular v. Union of India AIR 1996 SC 11, Common Cause, A Registered Society v. Union of India AIR 1999 SC 2979, Union of India v. S.B. Vohra AIR 2004 SC 1402, para 25, and (judic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use the words "made ups" have been mentioned in Schedule "B" of taxable goods, it will not be conclusive of the blankets being covered by such expression even if under the Central Excise Tariff Act, the position may be different. The fact was that the blankets were being treated as tax-free under the Punjab General Sales Tax Act, 1948 which was in force up to March 31, 2005 before the enactment of the VAT Act. Goods in question were detained on September 2, 2005 which was prior to memorandum in question and the amendment. The fact that the State issued memorandum and amended the Schedules itself shows that there was scope for different interpretations on the relevant date. Learned counsel for the State has explained th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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