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2016 (5) TMI 171 - GUJARAT HIGH COURT

2016 (5) TMI 171 - GUJARAT HIGH COURT - [2016] 92 VST 542 (Guj) - Validity of seizure memorandum - Truck detained and goods seized - Petitioner contended that the truck and goods could not have been seized for breach of the provisions of section 69 of the GVAT Act - Held that:- the sole ground for detention of the truck is that the driver or the person in-charge of the vehicle was not carrying a transit pass in Form 405. The provision for carrying a transit pass in Form 405 is relatable to secti .....

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t 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 section 69 of the GVAT Act, the authorities under the said Act cannot resort to the provisions of Section 68( .....

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n 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 authority may seize the goods after detaining the vehicle and after the seizure of the goods, the goods may be kept by the authority at any place where it is .....

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n breach of the provisions of sections 68 and 69 of the GVAT Act. The impugned seizure memorandum, therefore, cannot be sustained and the respondent is directed to release the truck along with the goods contained therein. - Decided in favour of petitioner - SPECIAL CIVIL APPLICATION NO. 6078 of 2016 - Dated:- 22-4-2016 - MS. HARSHA DEVANI AND MR. G.R.UDHWANI, JJ. FOR THE PETITONER : UCHIT N SHETH, ADVOCATE FOR THE RESPONDENT : MR. HARDIK VORA, ASSISTANT GOVERNMENT PLEADER ORAL JUDGMENT (PER : HO .....

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Vadodara whereby he has detained the truck bearing No. GJ-1-CX-8931 and seized the goods of the petitioner. 4. The petitioner is engaged in trading in sopari (betel nut) and is registered under the Value Added Tax Law of the State of Delhi. The petitioner placed an order upon M/s. Liberty Supari Trading Company which is a registered dealer in the State of Kerala for purchase of sopari. Pursuant to such order, the goods were moved by the transporter M/s. Ocean Cargo from Mangalore to the place of .....

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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 .....

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in the prescribed Form 405 with him and was informed that there were alternative routes for reaching Delhi from Mangalore and the transporter was not aware that the driver would take the truck through the State of Gujarat and hence, he failed to generate online transit pass in the prescribed Form 405. 5. The petitioner appeared before the Commercial Tax Officer on 2.4.2016 and submitted that the goods were seized at Golden cross roads on Vadodara-Halol highway and not at Makarpura Check-post as .....

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goods of the petitioner has been stopped at Vadodara-Halol highway, which is not a check-post as envisaged under sub-section (4) of section 68 of the GVAT Act and hence, the respondents have no authority to detain the truck and seize the goods. Inviting attention to the seizure memorandum, it was pointed out that the only deficiency referred to therein is that the driver did not have a transit pass in Form 405 with him. It was submitted that when the driver or the person in-charge of the vehicl .....

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as submitted that the respondents have exercised powers under section 68(4) of the GVAT Act for the alleged breach of the provisions of section 69 of the GVAT Act and, therefore, the action of the respondents of seizing the goods and detaining the truck is without any authority of law. It was, accordingly, 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. .....

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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 seizure .....

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e been seized for breach of the provisions of section 69 of the GVAT Act. 9. Insofar as the first ground for assailing the impugned seizure memorandum is concerned, the fact regarding the truck having been stopped at Vadodara-Halol highway and not at the Makarpura Check-post has been denied by the respondents. Thus, the first ground involves a disputed question of fact and hence, this court in the exercise of powers under Article 226 of the Constitution of India, would not enter into the arena o .....

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t pass in Form 405. The provision for carrying a transit pass in Form 405 is relatable to section 69 of the GVAT Act, which bears the heading Transit pass for transit of goods by road through the State . Subsection (1) of section 69 of the Act imposes an obligation upon the driver or person in charge of a vehicle carrying goods, coming from any place outside the State which is bound for any other place outside the State, to obtain in the prescribed manner, a transit pass for such vehicle from th .....

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fter 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 go .....

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efore, 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 sub-section (4) of section 68 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 .....

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T Act, the officer-in-charge of the check-post is empowered to release the goods or the documents so seized under sub-section (4) on payment of tax, interest and penalty or on furnishing such security in such form as may be prescribed. However, for release of the truck, the officer-in-charge of the check-post is not empowered to impose any condition. Under sub-section (4) of section 68 of the GVAT Act the officer in-charge of the check post is empowered to seize goods and detain the vehicle and .....

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