TMI Blog2016 (5) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... alleged breach of the provisions of section 69 of the GVAT Act. The action of the second respondent of resorting to seizure of the goods and the truck is, therefore, beyond the bounds of his authority inasmuch as for breach of the provisions of section 69 of the GVAT Act, the authorities under the said Act cannot resort to the provisions of Section 68(4) of the GVAT Act. The goods carried in the vehicle can be seized only if the requirements of Section 68(4) of the GVAT Act are not satisfied. However, for breach of the provisions of section 69 of the GVAT Act, action can only be taken under that section whereby the concerned officer is empowered to levy penalty not exceeding one and one half times the tax as may be determined, against the driver or person in-charge of the vehicle. With a view to have the seizure of the goods, vehicle can be detained but there is no power to seize the vehicle. The power given to detain the vehicle is to facilitate the seizure of the goods and it cannot be termed as the detention for an indefinite period. The reasonable interpretation would mean that once the goods are found in any vehicle and upon inquiry if it is found unsatisfactory, the author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jarat through Songadh check-post. When the truck reached near Golden cross roads on Vadodara-Halol highway, it was stopped by the officers of the Commercial Tax Department. When the driver informed them that he did not have transit pass in the prescribed Form 405 with him, the truck with the goods was seized and the truck was taken to the office of the second respondent in Vadodara city. It is the case of the petitioner that while the seizure was made on Vadodara-Halol highway and the truck with the goods was thereafter taken to Vadodara city, the place of issuance of the seizure memorandum has been mentioned as Makarpura Check-post. Subsequently, the concerned officer further issued show cause notice to the driver stating that if tax, interest and penalty are not paid on the seized goods then the goods would be auctioned. It appears that the transporter had also received notice for imposition of penalty as well as for making issue based assessment under section 34(8A) of the Gujarat Value Added Tax Act, 2003 (hereinafter referred to as GVAT Act ) to which the transporter duly submitted a reply. It is further the case of the petitioner when it came to know about the seizure of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dingly, urged that the impugned order passed by the second respondent deserves to be quashed and set aside and the respondents are required to be directed to forthwith release the truck and the goods. 7. Vehemently opposing the petition, Mr. Hardik Vora, learned Assistant Government Pleader for the respondents, drew the attention of the court to the averments made in the affidavit-in-reply filed on behalf of the second respondent. It was submitted that the contention of the petitioner that the truck was stopped by the officers at Golden Cross-roads on the Vadodara-Halol highway is totally false and baseless and that the truck was stopped at Makarpura check-post and that as the driver did not have the requisite Form 405, the goods were seized after following due procedure as required by law. Reference was also made to the averments in paragraphs 9 and 10 of the affidavit-in-reply to submit that the transactions entered into by the petitioner are not doubtful in nature. It was submitted that it is an admitted position that the driver or the person in-charge of the vehicle was not carrying Form 405, and hence, the second respondent was wholly justified in passing the impugned seizu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch penalty not exceeding one and one half times the amount of tax of goods carried by him, as may be determined after giving a reasonable opportunity of being heard. Reading section 69 of the GVAT Act in its entirety, there is nothing therein to indicate that the same, in any manner, empowers the officer-in-charge of the check-post to seize the goods or detain the truck. Reverting to the facts of the present case, though the alleged breach is of the provisions of section 69 of the GVAT Act, the second respondent has resorted to the powers under subsection (4) of section 68 of the GVAT Act of seizing the goods and detaining the truck. It appears that since under section 69 of the GVAT Act, the authorities under the said Act not empowered to seize the goods and detain the truck, the second respondent has resorted to the colourable exercise of powers under section 68(4) of the GVAT Act, by seizing the truck and goods contained therein for the alleged breach of the provisions of section 69 of the GVAT Act. The action of the second respondent of resorting to seizure of the goods and the truck is, therefore, beyond the bounds of his authority inasmuch as for breach of the provisions of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etaining the vehicle and after the seizure of the goods, the goods may be kept by the authority at any place where it is permissible, but the vehicle is required to be released thereafter. 12. In the present case, not only have the respondent officers, in purported exercise of powers under sub-section (4) of section 68 of the GVAT Act, wrongly seized the truck along with the goods that it was carrying, but despite the fact that sub-section (4) of section 68 of the GVAT Act only permits the officer to detain the truck, till date they have not released the truck in clear violation thereof. The action of the respondent authorities, therefore, is in breach of the provisions of sections 68 and 69 of the GVAT Act. The impugned seizure memorandum dated 31.3.2016, therefore, cannot be sustained. 13. For the foregoing reasons, the petition succeeds and is accordingly allowed. The impugned seizure memorandum dated 31.3.2016 issued by the Commercial Tax Officer is hereby quashed and set aside and the respondents are directed to forthwith release the truck No. GJ-1-CX-8931 along with the goods contained therein. Rule is made absolute accordingly. 14. Since the petitioner s truck has b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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