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Cavinkare P. Ltd. Versus Commissioner, Value Added Tax And Others

2016 (4) TMI 484 - DELHI HIGH COURT

Seeking release of consignment - Seizure of 207 cartons of Raga Shampoo under ‘Mal Roko Adesh’ - Petitioner contended that there was only a stock transfer from the company's branches and that there was no sale as such of the stock - Held that:- it was being asserted by the Petitioner that there 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 w .....

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ehicle and the goods under Section 61(2) of the DVAT Act.

The assertion made by petitioner 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 d .....

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e 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. Therefore, the impugned detention order dated 10th September 2012 and the consequent order of assessment of tax and penalty are set aside. The amount deposited by the petitioner by way of tax and p .....

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rcement) ( VATO ), Department of Trade and Taxes (DT&T), Government of NCT of Delhi. 2. The Petitioner is engaged in the business of manufacture of personal care products having its registered office in Chennai and branches in various other states all over India. Its Delhi office is registered with the DT&T since 1991. It is stated that the Delhi office of the Petitioner receives stocks for sale by way of transfer from the registered office as well as branches from other states. In fact .....

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s of Raga Shampoo were sent by way of stock transfer from the Chennai branch and the Petitioner received the said consignment in its Delhi office on 10th September 2012. It is stated that the goods were being unloaded at the Petitioner s godown in Dilshad Garden. When 240 out of 447 cartons had already been unloaded, the VATO (Enforcement) arrived at the spot and asked for the requisite documents consisting of the stock transfer challan, GR and road permit. It is asserted that despite these docu .....

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er 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 t .....

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aforementioned tax and penalty amount on 21st September 2012 and got the possession of the vehicle and goods. 7. It is inter alia submitted that since the vehicle was already stationary when the goods were being unloaded there was no power in terms of Section 61 of the Delhi Value Added Tax Act, 2004 ( DVAT Act ) to detain the vehicle or the goods. Secondly, it is asserted that detention could have been ordered only if the consignment was not accompanied by proper documents, whereas in the prese .....

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x. The further grounds urged are that the officer who detained the goods was himself the officer who assessed the tax and imposed penalty. It is stated that since the detention of the goods, passing of the detention order and imposition of penalty are entirely without the authority of law, the Court should exercise its powers under Article 226 to quash the impugned orders. 8. Pursuant to the notice issued in this petition on 14th December 2012, a counter affidavit as been filed by the Respondent .....

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was also filled up at the spot on the basis of his statement. It is not denied that the representations made by the Petitioner on 12th and 14th September 2012 were received by the DT&T. It is stated that the letter submitted on 13th September 2012 on behalf of the Petitioner 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 a .....

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lty 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 well as the order creating the deman .....

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the VATO and the date on which they appeared. The pre-printed form simply states, after noting the above facts, that The assessment of penalty and of tax is as under/as per Annexure . In other words, no reasons have been indicated as to why an assessment was being made of tax, interest and penalty. There is no noting or discussion of the submissions made before the VATO. 11. In paras 13 and 14 of the writ petition, a specific reference is made to the representations made by the Petitioner on 12 .....

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oes not mention any of these facts. 12. In other words, there is nothing to indicate, from either the detention order or the impugned notice of assessment and penalty that the VATO had applied his mind to the facts and circumstances under which the vehicle and the goods in question were seized. To say the least, this is the most unsatisfactory manner of dealing with the interception of goods and the consequent assessment of tax and penalty. Earlier too, this Court has on several occasions expres .....

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e 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 .....

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