TMI Blog2015 (11) TMI 939X X X X Extracts X X X X X X X X Extracts X X X X ..... ection (1) of section 68 of the VAT Act provides that if the State Government considers that with a view to preventing evasion of tax in any place or places in the State, it is necessary to do so; it may by notification in the Official Gazette, direct that such number of check-posts shall be set up or such number of barriers shall be erected at such places as may be specified in the notification. Therefore, the check-post or barrier as envisaged under sub-section (4) of section 68 of the Act must be notified by the State Government in exercise of powers under sub-section (1) of section 68 of the VAT Act. It is, therefore, manifest that the powers under subsection (1) of section 68 of the VAT Act clearly cannot be exercised by the Additional Commissioner Enforcement, Gujarat State by virtue of a letter, as has been submitted on behalf of the respondents. Even if such letter had granted such permission, the same would be without jurisdiction, inasmuch as, the jurisdiction under section 68(1) of the VAT Act has to be exercised in the manner provided therein by the State Government by issuing a notification specifying the places where such check-post is to be set up or barrier is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notified by the State Government by notification dated 05.04.2007. However, upon the verification, it was found that there was no exit check-post in the State of Gujarat before entering Diu and, therefore, it was impossible for the transporter to file online application for transit pass and hence, it gave a manual application in the prescribed Form 404 to the driver of the vehicle for issuance of transit pass. It was specifically mentioned in the application that since the online system was not showing exit check-post for Diu, he could not generate online Form 404/405 and hence, he had given manual application in Form 404/405. 4. It is further the case of the petitioner that when the goods reached the entry check-post at Songadh in the State of Gujarat, the transporter showed the documents relating to the goods to the concerned officer at the check-post pointing out that the goods were to pass through the State of Gujarat onwards to the Union Territory of Diu and a request was made for issuance of transit pass on the basis of the manual application for transit pass in Form 404. According to the petitioner, the officer at the check-post informed the carrier that since there was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It was submitted that in the facts of the present case, the officer who has issued the memo under section 68(4) as well as the show cause notice under section 68(5) of the VAT Act had no authority in law to detain the truck and to issue seizure memo and the show cause notice, as he was not an officer in-charge of a check-post or barrier. It was, accordingly, urged that the action of the respondents being devoid of any authority of law, the impugned seizure memo as well as the show cause notice are required to be quashed and set aside and the truck with the goods be ordered to be released forthwith. 6. Opposing the petition, Ms. Maithili Mehta, learned Assistant Government Pleader for the respondents placed reliance upon the contents of the affidavit-in-reply filed on behalf of the respondents. As regards the powers of the second respondent to detain the vehicle in question together with the goods, it was submitted that the Additional Commissioner Enforcement, Ahmedabad, Gujarat State has, by a letter dated 06.07.2015, directed the Deputy Commissioner of Commercial Tax to have mobile check-posts in the areas near Karjan Toll Naka, Dhumad Chokadi, Express Highway, Godhra Limdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts referred to in clause (a) of sub-section (3) does not match with the signature furnished by the registered dealer under section 66A. (b) if the driver or other person in charge of a vehicle, boat or animal carrying goods does not make a declaration or if he makes a declaration, he does not keep a copy thereof with him as required by clause (c) of sub-section (3), he may, after recording the reasons, seize such goods and vehicle and give receipt thereof to the person from whose possession or control, the goods or vehicles are seized. (5) (a) The officer-in-charge of the check-post or barrier may, after giving the owner, driver or personin- charge of goods, a reasonable opportunity of being heard and after holding such further inquiry, as he deems fit, impose on h penalty, in addition to tax payable under this Act, not exceeding one and one- half times of the tax for possession of goods or vehicles so seized. (b) The officer-in-charge of the check-post or a barrier may release any of the goods, vehicle or documents so seized under sub-section (4) on payment of tax, interest and penalty or on furnishing such security in such form as may be prescribed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s totally without jurisdiction, the question of going into the merits of the show cause notice would not arise. No authority other than the authority duly empowered can exercise powers under a statutory provision, unless the statute so provides. In the present case, the language of the statute is clear, viz. that the vehicle can be detained by an officer in-charge of a check post or barrier. Under the circumstances, action of the second respondent in resorting to taking action under section 68(4) of the VAT Act, when he had no power to do so cannot be justified with reference to the merits of the case. Even otherwise, this court is of the view that also on merits, the petitioner has made out a good case. 11. For the foregoing reasons, the petition succeeds and is, accordingly, allowed. The impugned seizure memo and the show cause notice both dated 24.10.2015 issued by the Commercial Tax Officer (Annexure A to the petition collectively), are hereby quashed and set aside. The second respondent is directed to forthwith release the truck bearing registration No.GJ-1-BY-5295, along with the goods contained therein. Rule is made absolute accordingly, with no order as to costs. - ..... 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