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TMI Blog2016 (5) TMI 435X X X X Extracts X X X X X X X X Extracts X X X X ..... ent under section 70A of the GVAT Act. 4. The first petitioner is a sole proprietary firm carrying on business of wholesale and retail merchants of various items, including betel-nuts. The second petitioner is a Company registered under the provisions of the Companies Act, 1956 and is, inter alia, engaged in the pan-India business of commercial transportation of goods, including edible goods, for various parties. Pursuant to an order placed by M/s Annapurna Trading Company based in Delhi, the first petitioner availed of the services of the second petitioner for transportation of 15,820 kilograms betel-nuts from Nagpur, Maharashtra to Delhi. Accordingly, a truck bearing registration No.MH-40-M-2325 was loaded with the aforesaid goods at Nagpur. The lorry receipt issued clearly showed that the consignor was M/s Jay Ambey Traders, Nagpur and the consignee was M/s Annapurna Trading Company, Delhi and it was a door delivery to the consignee's address. It is the case of the petitioners that for reasons best known to him, Shri Rais Ahemad Ansari, the driver of the said truck, took the route via Changodar on the way from Nagpur to Delhi and hence, on 22.03.2016, the truck entered the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that the second respondent has no valid ground or authority of law for issuing such detention order, when Form 405 and other documents had been produced showing that the goods were in transit through the State of Gujarat. Moreover, the impugned order has been issued on the purported ground that Form 403 was not produced by ignoring the fact that Form 403 issued under rule 51(3) of the Gujarat Value Added Tax Rules, 2006 is not at all applicable to goods in transit through the State of Gujarat and in any case, it was not even sought in the notice. It was, accordingly, urged that the petition deserves to be allowed by granting the reliefs as prayed for therein. 6. Opposing the petition, Mr. Hardik Vora, learned Assistant Government Pleader placed reliance upon the averments made in the affidavit-in-reply filed on behalf of the second respondent. It was submitted that the vehicle in question was detained and the goods were seized by the respondent authorities at Changodar, Near Sanand in the exercise of powers under section 70A(1)(b)(i) of the GVAT Act. It was submitted that such powers had been exercised pursuant to information received from intelligence as well as the stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the driver, as translated into English reads thus: "Upon examining the bill/builty and Form 405 in respect of the goods - betel-nuts being transported in your vehicle No.MH- 40-M-2325, it appears that the goods are being transported from Nagpur to Delhi. However, it has been informed that such goods are to be offloaded at Changodar, Ahmedabad. Hence, you are informed to clarify the same." 8. After issuing the said notice, on the same day, at 03:00 p.m., the impugned detention order dated 22.03.2016 came to be passed. For the purpose of better appreciating the controversy in issue, it would be germane to reproduce the contents of the impugned detention order, which reads thus: "DETENTION ORDER (Under section 70(A) of Gujarat Value Added Tax Act, 2003) The intelligence has been received regarding the movement of goods form (from) within Gujarat State OR other State to Gujarat wherein no Form 402 / 403 has been carried by the carrier of the goods in respect of vehicle bearing registration No.MH-40-N-2325 (truck no.), therefore, I, the undersigned, has reason to believe that the tax on such goods is or is likely to be evaded the said vehicle was stopped at Changodar Road ------ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Moreover, the grounds stated in the impugned detention order is that the system generated form 403 related to the goods has not been produced. As rightly submitted by the learned counsel for the petitioners, when a truck is only passing through the State of Gujarat, the driver is required to carry a transit pass in Form 405 which he was duly carrying and no system generated Form 403 was required to be carried by him. It is further recorded in the detention order that the transporter could not produce the required documents/ information called for under section 70A of the GVAT Act and thereby, failed to produce the same. As can be seen from the impugned notice, all that the driver was called upon was to explain his statement that the goods were required to be offloaded at Changodar. Thus, the driver was not called upon to produce any documents or information under section 70A of the GVAT Act. Moreover, in the detention order, which appears to be a cyclostyled one, there are several blanks and it is difficult to comprehend as to exactly what is the default on the part of the petitioners. 11. Section 70A of the GVAT Act, under which the detention order has purportedly been passed, be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sub-section (7) of section 67 of the GVAT Act provides that the provisions of the Code of Criminal Procedure, 1973 relating to searches shall apply, so far as may be, to a search made under sub-sections (5) and (6) of section 67 of the GVAT Act. It is not the case of the second respondent that any procedure as envisaged under sub-section (7) of section 67 of the GVAT Act has been followed in the present case. Thus, the vehicle does not appear to have been stopped under section 67(6) of the GVAT Act. 13. Apart from the above, as is evident from the facts noted hereinabove, while it is stated in the impugned detention order that the notice was issued and served upon the transporter, in fact, no such notice has been served upon the second respondent and the notice in Form 403 was issued and served upon the driver of the vehicle. Moreover, the time granted to the driver to respond to the notice was only one hour. One fails to understand the haste in which the second respondent acted in the present case and as to why no proper notice could be issued to the second petitioner, if at all any information was required by the respondent authorities. Section 70A of the GVAT Act permits the C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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