TMI Blog2016 (4) TMI 484X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner only meets with the bare denial in the counter affidavit and not a specific denial. It is simply stated “the contents of paras 24 to 26 are wrong and denied. Each and every averment made in these paras are specifically denied”. No attempt has been made to deal with the issue of authorisation enabling the VATO concerned to undertake the exercise of interception of the vehicle in question and to detain the goods. The impugned order of detention and the consequent order of assessment stands vitiated on this score as well. If the Delhi office of the Petitioner was registered under the DVAT Act, and has been regularly filing its tax returns and depositing the VAT and CST since 2006-07, and has been following the same system of receiving goods by way of stock transfer from its Chennai and other branches, the VATO should have in the instant case taken note of the facts and taken the trouble of discussing the circumstances under which the truck happened to be intercepted and the goods detained. What the Court has found in the present case is a complete non-application of mind by the VATO, not only to the facts and circumstances of the case but also to the requirement of the law. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07 cartons was seized under Mal Roko Adesh dated 10th September 2012. The reasons for seizure of the goods were stated to be without bills . The detention order was passed on the same day on the basis of the said statement and has been challenged in the present petition. 4. The Petitioner states that on 12th September 2012, it reported the matter to the Deputy Commissioner (Enforcement), DT T ( Respondent No. 2 ), but the Respondent No. 2 was not prepared to release the consignment unless the tax and penalty was deposited by the Petitioner. 5. It is stated that the Petitioner made another representation to the Respondent No. 2 on 14th September 2012 in which the circumstances under which the consignment was received by way of stock transfer from Chennai was explained. The authorized representative of the Petitioner also appeared before the VATO on 17th September 2012 and produced all the original documents. However, on that date itself the VATO passed the impugned order creating a tax demand of ₹ 67,068 and the penalty of ₹ 2,14,618 as a condition for release of the detained goods. The said sums were calculated on the basis of inventory of 207 cases. 6. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner to the Additional Commissioner was without any authority and therefore was not acted upon. It is then stated that GR which was produced was a delivery note and did not indicate the form of transportation. It was in the above circumstances the contentions of the Petitioner were rejected and the impugned order creating demand of penalty was passed. 9. Interestingly, in the counter affidavit, no preliminary objection is raised as to the maintainability of the petition. However, in the course of arguments, learned counsel for the Respondents did submit that the Petitioner had an efficacious alternative remedy of filing objections against the impugned notices of default assessment of tax and interest as well as penalty under Section 74 of the DVAT Act and thereafter an appeal before the Appellate Tribunal under Section 76 of the DVAT Act. However, for the reasons indicated hereinbelow the Court finds that the Respondents have acted without jurisdiction and in gross abuse of the powers under the DVAT Act. Therefore the Court is constrained to invoke its power under Article 226 of the Constitution. 10. At the outset it requires to be noticed that the order of detention as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere was only a stock transfer from the company's branches and that there was no sale as such of the stock. What is surprising is that the impugned order does not even note the said contention much less deal with it. While an effort has been made in the counter affidavit to summarize the statements that were made before the VATO, the impugned order itself does not note any of these contentions. In particular, the assertion now made that at the time when the vehicle was intercepted, it was moving on Shahdara road and not stationary, is not mentioned in the impugned order. In the facts and circumstances, the Petitioner is justified in stating that there was no occasion for the VATO to have seized the vehicle and the goods under Section 61(2) of the DVAT Act. 14. On the aspect of due authorisation of VATO for undertaking the exercise of interception of vehicles and detention of goods in question, the Petitioner has asserted in para 25 of the petition as under: That it submitted that detention order dated 10.9.2012 is a nullity also for the reason that as per section 68 of the Act read with Rule 65 of the Delhi Value Aded Tax Rules, 2005, Respondent No.1 is required to appoi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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