TMI Blog2011 (5) TMI 874X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, has impugned the seizure order dated May 7, 2011, on the following grounds: (i) Section 50 of the U.P. Value Added Tax Act does not permit seizure of a consignment being imported into the State of U. P. on the ground of undervaluation; the entire proceedings suffer from an inherent lack of jurisdiction and are void ab initio. (ii) The notice to show cause dated May 2, 2011 issued by respondent No. 2 did not specify the basis for alleging undervaluation of the consignment; the notice was vague and did not give sufficient opportunity to meet out the case of the consignment not having been properly valued; it was no notice in the eyes of law. (iii) The order dated May 7, 2011 has been passed without fulfilling the preconditions necessary for concluding undervaluation of the consignment; the State has not discharged its burden of proving undervaluation of the consignment; the order is illegal and liable to be set aside. Though these are three grounds raised in the petition, we propose to consider ground No. 1 and in addition the question whether the importer/ transporter, has a remedy under the U.P. Value Added Tax Act by way of appeal and/or revision. The petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r has approached this court by invoking its extraordinary jurisdiction. It is also submitted that, as the notice does not specify the basis for undervaluation of the consignment, the same is vague and is no notice in the eyes of law. It is further submitted that the petitioner was not afforded sufficient opportunity. Lastly, it is submitted that the order of seizure has been passed without fulfilling the necessary requirements and, consequently, the same is illegal and liable to be quashed. On the other hand, on behalf of the respondents, learned standing counsel submits that there is power of seizure under section 50 of the U.P. VAT Act. It is further submitted that, as the petitioner has a remedy by way of filing an appeal, as also by moving under the first proviso to sub-section (7) of section 48 of the U.P. VAT Act, this court should not exercise its extraordinary jurisdiction. In respect of other contention, it is submitted that as the owner of the vehicle has filed reply to the show cause through the petitioner, the petitioner has submitted itself to the jurisdiction of the respondents and, as such, even if the petitioner is aggrieved, the proper remedy would be to firstly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e outside the State any goods, shall obtain the prescribed form of declaration in such manner as may be prescribed from the assessing authority having jurisdiction over the area, where his principal place of business is situated or, in case there is no such place, where he ordinarily resides. Sub-section (4) of section 50 confers power in the officer, making the search or inspection under this section, who finds any person transporting or attempting or abetting to transport any goods to which this section applies without being covered by the proper and genuine documents referred to in the preceding sub-sections and for the reason to be recorded, if he is satisfied, after giving such person an opportunity of being heard, that such goods were being so transported in an attempt to evade assessment or payment of tax due or likely to be due under this Act, he may order detention of such goods. By virtue of subsection (5) of section 50, various provisions of section 48 of the U.P. VAT Act, which are the machinery provisions, have been made applicable to the goods under sub-section (4). One such provisions is sub-section (7) of section 48, under which the officer seizing the goods, can re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en, proceeded to hold that the Tribunal had given a finding of fact that the goods were accompanied by all the relevant documents and, consequently, held that merely on the ground of undervaluation there is no ground for seizure of the goods. We may mention that in the case of Macdowell and Company Ltd. [2001] UPTC 1042, the learned judge in paragraph 11 has specifically observed that the declaration forms were found to be genuine and no defects were found. In our opinion, it would not be possible for us to follow the judgment of the learned judge in Delhi Calcutta Carrying Corporation [2003] UPTC 929 rendered under the provisions of the U.P. Trade Tax Act. The reasons being that it is incumbent on a person, who is importing goods, to declare the true value of the goods. Failure to declare the true value of goods would result in the document being held not to be a proper document in the context of the valuation. It was then submitted that the power of seizure, if at all, is located under section 48 of the U.P. VAT Act. From a perusal of sections 48 and 50 of the U.P. VAT Act, we find that section 50 is in respect of importing goods into the State by road against declaration, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 of 2009), the Division Bench by judgment dated November 17, 2009, dismissed the writ petition on the ground of availability of alternative remedy. In the case of Gupta Suppliers Company v. Commissioner, Commercial Tax, U.P. [2011] 45 VST 38 (All); [2010] UPTC 1693, a learned Division Bench has taken a view that the plea of alternative remedy is no bar in maintaining a writ petition against the seizure order, though this was at an interim stage. We may, now examine the two judgments on which reliance has been placed. In Rida International v. State of U.P.1 (Writ Tax No. 2166 of 2009) the court was pleased to note that an order passed under section 48(7) of the U.P. VAT Act is appealable under section 57(4) of the said Act, and that, it goes without saying that the order passed by the Tribunal is revisable by the High Court. The question arose before the court, whether the legality of the seizure could be gone into in proceedings under the first proviso to section 57(4) of the U.P. VAT Act. The learned Bench observed that, on recording reasons, the authority can order release of goods even without asking for any security, and it will necessarily follow that if the seizure order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seized may be released in favour of the dealer or, as the case may be, the person in charge: Provided that the Commissioner or such other officer, not below the rank of a Deputy Commissioner, as may be authorised in this behalf by the Commissioner, may, for sufficient reasons to be recorded in writing, direct that the goods be released without any deposit or on depositing such lesser amount, or furnishing security in such form other than cash or indemnity bond, as he may deem fit: Provided further that in case of a person, who is not a registered dealer and against whom penalty order referred to in sub-section (5) has been passed, filing of return by such person and assessment of tax on him may not be necessary. It would, thus, be clear that under the first proviso, against the order of the officer, on an application to the Commissioner, the Commissioner, for sufficient reasons, can direct the release of goods without any deposit or on depositing such lesser amount, or furnishing security in such form other than cash or indemnity bond, as he may deem fit. The officer concerned, in terms of section 48(7), can only order deposit in cash for release of the goods. The proviso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for. This specifically speaks of an order passed under section 48(7). An order passed under section 48(7) would be, both under the main sub-section as also an order passed under the proviso. The argument, that it is not open to the officer or the Commissioner to examine the validity of the seizure/detention, is misplaced. Grant of interim relief necessarily contemplates prima facie satisfaction on the merit of the matter, in what judicially we recognize as a prima facie case. So, unless there be a prima facie case, the question of granting interim relief for release of goods without deposit as provided under the proviso, would not arise. We have, therefore, no hesitation to hold that a person aggrieved against an order of seizure has a remedy under section 57(4) of the U.P. VAT Act. We, therefore, approve the view taken in Rida International v. State of U.P.See page [2013] 58 VST 40. (Writ Tax No. 2166 of 2009) to which one of us (Justice Prakash Krishna) was a Member. At the outset, we have mentioned that the law as settled is that availability of alternative remedy is by itself no ground for this court not to exercise its extraordinary jurisdiction. The parameter of exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X
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