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OM SAI ASSOCIATES Versus STATE OF GUJARAT AND 1

2016 (3) TMI 698 - GUJARAT HIGH COURT

Validity of seizure memo issued by commercial Tax Officer - Section 68(4)(b) of the Gujarat Value Added Tax Act, 2003 - Trading of Sopari in truck - Truck was stopped by police who was not the officer-incharge of the notified check-post and seized the goods under Section 68 of the GVAT Act without giving an opportunity of being heard to the petitioner - There is no such provision under the Act, therefore, the action of the respondent is without any authority of law - Held that:- the action taken .....

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section 68(4)(b) of the Act is totally without jurisdiction. - Decided in favour of petitioner - SPECIAL CIVIL APPLICATION NO. 3826 of 2016 - Dated:- 14-3-2016 - MS. HARSHA DEVANI AND MR. G.R.UDHWANI, JJ. FOR THE PETITIONER : UCHIT N SHETH, ADVOCATE FOR THE RESPONDENT : MR SWAPNESHWAR GAUTAM, ASSTT. GOVT. PLEADER ORAL JUDGMENT (PER : HONOURABLE MS.JUSTICE HARSHA DEVANI) 1. Rule. Mr. Swapneshwar Gautam, learned Assistant Government Pleader waives service of notice of rule on behalf of the respond .....

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s the GVAT Act ) whereby, the petitioner s truck No.GJ-11-X- 8839 with the goods contained therein has been seized. 4. The facts of the case as averred in the petition are that the petitioner is a proprietary concern having a place of business in the State of Delhi and is engaged in trading of sopari (betel nut) and is registered under the provisions of the VAT Act in the State of Delhi. The petitioner had placed an order upon M/s Liberty Supari Trading Company, which is a registered dealer in t .....

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the Ahmedabad - Rajkot highway so that he could stop by at his native village. On 02.03.2016, at about 1:30 a.m., the vehicle was stopped by the police and the driver was asked to show the documents relating to the goods. The policemen, thereafter, informed the VAT authorities about the truck, whereupon, the Commercial Tax Officer passed the impugned stop delivery order dated 03.03.2016 and issued notice for imposition of penalty under section 68 of the GVAT Act. Being aggrieved, the petitioner .....

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8 of the GVAT Act on the highway without there being any such provision under the Act, by an officer, who is not an officer-incharge of a notified check-post or barrier and hence, the action of the respondents is without any authority of law. It was submitted that the goods have been seized without giving an opportunity of being heard to the petitioner, despite the fact that the transporter was having all documents relating to the goods. It was submitted that the seizure of goods without giving .....

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the GVAT Act. It was submitted that the action of the authorities being totally without jurisdiction, the impugned seizure memo is required to be quashed and set aside and the respondents are required to be directed to forthwith release the truck in question with the goods contained therein. 6. On the other hand, Mr. Swapneshwar Gautam, learned Assistant Government Pleader for the respondents, supported the action of the respondents by submitting that the driver of the truck in question did not .....

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It was, accordingly, urged that the petition being devoid of merits, deserves to be dismissed. 7. The facts are not in dispute. The truck in question together with the goods contained therein has been seized by the Commercial Tax Officer, Surendranagar in exercise of powers under section 68(4)(b) of the GVAT Act. It is an admitted position that the second respondent is not an officerin- charge of a check-post or a barrier as contemplated under section 68(1) of the GVAT Act. Sub-section (1) of s .....

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is of the opinion that the requirements of clauses (a) and (b) thereof are not satisfied, he may, after recording the reasons, seize such goods and detain the vehicle and give receipt thereof to the person from whose possession or control, the goods are seized. Sub-section (5) of section 68 of the GVAT Act empowers the officer in-charge of a check-post or barrier to impose penalty in addition to tax to the extent provided thereunder, after giving a reasonable opportunity of being heard to the ow .....

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er sub-section (4) of section 68 of the GVAT Act and hence, is not empowered to take any action under the said provision. Undisputedly, the impugned memo dated 03.03.2016 has been issued in the exercise of powers under section 68(4)(b) of the GVAT Act by the second respondent, who admittedly is not an officer-incharge of a check-post or barrier. Under the circumstances, the action taken by the second respondent in issuing the seizure memo under section 68(4)(b) of the GVAT Act is without any aut .....

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