TMI Blog2016 (5) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods which had been seized in the purported exercise of powers under sub-section (4) of section 68 of the GVAT Act was without any authority of law. The Tribunal in the impugned order has held that it is the transporter’s liability under section 69(1) to obtain a transit pass from the check-post authority at the time of entry of the vehicle in the State and not of the owner and hence, whatever may be the consequences of the lapses on the part of the transporter, the owner of the goods cannot be made answerable. Since the court is in agreement with the final conclusion arrived at by the Tribunal, it is not possible to state that the impugned order gives rise to any question of law, much less, a substantial question of law, warranting interference. - Decided against the revenue. - TAX APPEAL NO. 821 of 2015, TAX APPEAL NO. 824 of 2015 - - - Dated:- 1-4-2016 - MS. HARSHA DEVANI AND MR. G.R.UDHWANI, JJ. FOR THE APPELLANT : MR CHINTAN DAVE, ASSISTANT GOVERNMENT PLEADER FOR THE OPPONENT : KUNTAL A PARIKH, ADVOCATE COMMON ORAL ORDER (PER : HONOURABLE MS.JUSTICE HARSHA DEVANI) 1. Since all these appeals arise out of a common order passed by the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emand as reflected in the said order together with penalty at 150%. The respondent carried the matter in appeal before the Deputy Commissioner of Commercial Tax, Appeal-8, Surat, who confirmed the said orders. Against the order passed by the first appellate authority, the respondent went in appeal before the Tribunal, which observed that the only question which arose for consideration before it was whether the liability of the transporter can be fastened upon the dealer under the provisions of section 69 of the Gujarat Value Added Tax Act, 2003 (hereinafter referred to as the GVAT Act ) and held that it is the liability of the transporter to obtain transit pass and if the transporter has committed any default, the dealer cannot be held liable and, accordingly, set aside the orders passed by the first appellate authority and directed the Department to refund the amount paid by the respondent to get the goods released. Being aggrieved, the State has preferred these appeals. 4. Mr. Chintan Dave, learned Assistant Government Pleader assailed the impugned order by submitting that the Tribunal has failed to appreciate that the truck driver did not carry a transit pass or Form 402 as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though the order passed by the Commercial Tax Officer is purported to have been passed in exercise of powers under section 68(5) of the GVAT Act, essentially the same is an order under section 69 of the GVAT Act and hence, no tax and penalty could have been levied upon the respondent. It was submitted that having regard to the fact that the trucks and goods had been seized by the authorities under the GVAT Act, the respondent purchaser, on account of commercial exigencies was forced to get the same released by paying the entire tax and penalty amount. It was, accordingly, urged that the impugned order passed by the Tribunal being just, legal and proper and in consonance with the provisions of law, the same does not give rise to any question of law so as to warrant interference. It was submitted that the appeals, therefore, deserve to be dismissed. 6. The facts are not in dispute. The trucks in question which were carrying the goods of the respondent had crossed the Songadh Check-Post without stopping there and had been intercepted by the Anti Corruption Bureau. It appears that thereafter, the trucks were brought back to the check-post and in connection therewith the impugned ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct the payment of tax of ₹ 37,290/- and 150% of penalty of ₹ 55,940/-, in all, ₹ 93,230/- towards the seized goods. The amount shall be paid immediately and challan shall be produced here. 7. These, in sum and substance, are the contents of the order dated 7.8.2014 passed by the Commercial Tax Officer, which has given rise to the present proceedings. 8. As is evident on a plain reading of the impugned order, it has been passed in the exercise of powers under sub-section (5) of section 68 of the GVAT Act. Reference may, therefore, be made to the provisions of section 68 of the Act, which provides for inspection of goods in transit. Sub-section (2) thereof provides that at every check-post or barrier set up or erected under sub-section (1), the driver or any other person in charge of any vehicle shall stop the same, and keep it stationary so long as may reasonably be necessary and allow the officer-incharge of the check-post or barrier to examine the contents in the vehicle and inspect all records relating to the goods carried in the vehicle which are in the possession of such driver or other person in-charge who shall, if so required, give his name and add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar as a truck which has already entered the State is concerned, it is the provisions of section 69 of the GVAT Act which are applicable. 10. Section 69 of the GVAT Act provides that where a vehicle carrying goods coming from any place outside the State is bound for any other place outside the State, the driver or any other person in-charge of such vehicle shall obtain in the prescribed manner a transit pass for such vehicle from the officer-in-charge of the first check-post or barrier after his entry into the State and deliver the same to the officer-incharge of the last check-post or barrier before his exit from the State. Sub-section (2) of section 69 provides that if the driver or person-in-charge of such vehicle fails to deliver such transit pass throughout the State, he shall be liable to pay such penalty not exceeding one and a half times the amount of tax on goods carried by him as may be determined, after giving a reasonable opportunity of being heard. Thus, under subsection (1A) of section 69 of the GVAT Act, it is the liability of the driver or the person in-charge of the vehicle to pay the penalty as may be determined after giving him a reasonable opportunity of being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s did not directly invoke the provisions of section 69 of the GVAT Act but chose to resort to the provisions of section 68 thereof. The reason is not far to seek. Under sub-section (2) of section 69 of the GVAT Act, it is the driver or the person-in-charge of the vehicle who is liable to pay penalty as prescribed thereunder. Moreover, section 69 does not empower the authorities under the GVAT Act to seize the goods or detain the truck in case the driver or person-incharge of the vehicle fails to carry a transit pass. Sub-section (2) of section 69 of the GVAT Act provides for levy of penalty not exceeding one and a half times the amount of tax of goods carried by the driver or person in-charge of the vehicle and sub-section (3) thereof provides for levy of tax and penalty not exceeding one and a half times the amount of tax as may be determined, on the driver or person in-charge of the vehicle. Therefore, in case of breach of the provisions of section 69 of the GVAT Act, inasmuch as the authorities cannot seize the goods and detain the truck, the authorities would not be in a position to coerce the owner of the goods to pay the penalty levied thereunder. Therefore, it appears that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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