TMI Blog2010 (10) TMI 966X X X X Extracts X X X X X X X X Extracts X X X X ..... The petitioner is a registered dealer doing business, inter alia, of purchasing commission agency of essential oils. During the relevant period, the petitioner entered into a written composite agreement with M/s. Jindal Drugs Ltd., Gangyal, Jammu, for purchase and dispatch of 1332 MT mentha oil on their behalf on commission basis for advances made by the ex-U.P. principal by bank transfer. Actual expenses and commission were to be charged by the petitioner and the ex-U.P. principal was to provide form F for the transaction. The registration certificate and the agreement with ex-U.P. principal have been brought on record. The business of purchasing commission agency stands accepted by the assessing authority since its inception on November 9, 2005 till 2008-09 after detailed examination of the nature of transaction and books of account. The assessment orders of the previous years reflecting the aforesaid position have been brought on record. The petitioner purchases mentha oil from the farmers on behalf of ex-U.P. principal and dispatch as against statutory forms 6R, 9R and gate pass of mandi samiti. Mandi fee at the rate of 2.5 per cent is charged on removal of goods from mandi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax, Grade I, Lucknow Zone, which does not show any reason to believe that the goods were not accounted for by the dealer in his books of account maintained in the ordinary course of business or there was any undervaluation of more than 50 per cent, and also that the second detention memo was based on absolutely incorrect facts, but the prayer for release of goods was not accepted and a show-cause notice dated July 30, 2010 was issued. In show-cause notice, it was stated that the goods which were being transported are not the same as purchased against form 6R mentioned in the transfer invoice. This inference was drawn for the following reasons: (a) The test report of the percentage of menthol in the mentha oil obtained from the random sample from 10 drums is almost similar. (b) The inspection of the 6R shows that names of different farmers/ sellers have been written in the same manner. (c) The purchases on July 20, 2010 have been made from 38 persons which is not possible in one day. (d) There is difference in the entries of transfer invoice and form 9R as shown below: Sl. No. Entries in transfer Entries in 9R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e also raised a plea that the petitioner could file an appeal against the order passed under section 48 of the Act or that in any case, even if such an appeal is not provided, the matter can be seen during the assessment proceedings but the writ petition for the purpose would not lie. The learned counsel for the petitioner, on the issue of maintainability of the writ petition, has submitted that the action of the respondents in seizing the goods was wholly without jurisdiction and authority, coupled with the fact that no appeal lies against the order of seizure and the impugned order being wholly without jurisdiction, the petitioner cannot be required to wait for assessment proceedings, for delivery of goods and in such a situation, the writ petition under article 226 of the Constitution would be maintainable. On merits, learned counsel for the petitioner again emphasised that the grounds of detention and seizure cannot be attributed to any of the conditions mentioned in section 48(2) of the Act, which permits seizure when the goods are not properly accounted for by any dealer in his accounts, registers or other documents maintained in the course of his business. The submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whereas in form 9R, entries against cartage and testing were left blank and only against entry of stamp, a sum of ₹ 1,146 was shown. The total amount shown in transfer invoice is ₹ 95,66,386 and the same was the amount shown in form 9R. Cost of drum/mandi fee was shown as ₹ 2,33,100 and this was also the amount shown against entry mandi fee in form 9R. Thus, a perusal of the aforesaid entries in the documents would reveal that there was no discrepancy worth the name, at least prima facie to raise a plea that it was a case of not keeping the accounts properly or that goods under the consignment were different from the one mentioned in forms 6R and 9R. Besides, in view of the circulars issued by the Commissioner of Sales Tax and also in view of the fact that the goods were accompanied by relevant documents, namely, prescribed transfer challan dated July 20, 2010 containing all the details of goods, statutory form prescribed for transport of goods, mandi gate pass dated July 20, 2010, mandi 9R dated July 20, 2010 and GR dated July 20, 2010 along with the copy of agreement with ex-U.P. principal for purchase and dispatch of goods, they could neither have been detai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sale and the value of the goods appeared to have been shown at an amount lower than what it should properly, have been, action under the aforesaid provisions cannot be sustained. Section 48(2) of the Act also reads as under: Where any officer referred to in sub-section (1) has reason to believe that the goods found in any vehicle, vessel, building or place are not traced to any bona fide dealer or that it is doubtful if such goods are properly accounted for by any dealer in his accounts, registers or other documents, maintained in the ordinary course of his business, he shall have power to seize such goods, and the remaining provisions of this section shall mutatis mutandis apply in relation to such seizure. In the present case, it cannot be said that either of the two conditions given in the aforesaid section 48(2) of the Act did exist. We are, therefore, prima facie satisfied that neither the goods could have been detained by the mobile squad nor the seizure order have been passed on such not existent facts and incorrect reading of entries in 6R and 9R and merely on conjectures and surmises that purchases could not have been done in one day. The writ petition is, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
