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2016 (5) TMI 521 - GUJARAT HIGH COURT

2016 (5) TMI 521 - GUJARAT HIGH COURT - [2016] 95 VST 321 (Guj) - Validity of notice issued in Form 401 as well as the impugned detention order - All the requisite documents were produced except the transit pass in Form 405 as the driver forget to take it at the check post - Goods loaded in the truck detained - Petitioner submitted that provisions of section 70A of the GVAT Act are not applicable to goods which are in transit in a vehicle as all the requisite documents had been produced before t .....

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eld that:- the impugned detention order here contains several blanks. It is stated therein that the vehicle was stopped at Changodar Road, Ahmedabad under section 67(6) of the GVAT Act, whereas the learned Assistant Government Pleader, under instructions, has stated that no action was taken under sub-section (6) of section 67 of the GVAT Act, as a search warrant is required to be obtained for the purpose of carrying out search under sub-section (6) of section 67 of the GVAT Act. The impugned det .....

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the part of the petitioners. - Moreover, as is evident, the notice under section 70A of the GVAT Act came to be issued at 02:45 p.m. to the driver of the vehicle calling upon him to respond to the same at 03:40 p.m. Evidently therefore, no reasonable opportunity of hearing has been given to the petitioners prior to passing of the detention order. Under the circumstances, the impugned detention order also suffers from the vice of breach of the principles of natural justice. Moreover, on a pla .....

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gned order is even otherwise not sustainable, the court is not inclined to enter into the larger controversy as regards the applicability or otherwise of the provisions of section 70A to the facts of the present case, leaving it open to the petitioner to agitate the same in an appropriate case. Hence, the impugned detention order is hereby quashed and set aside. Since the truck in question has been released during the pendency of the petition, the respondents are directed to forthwith release th .....

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the controversy involved in the present case which lies in a very narrow compass and with the consent of the learned counsel for the respective parties, the matter was taken up for final hearing and is disposed of by this judgment. 3. By this petition under Article 226 of the Constitution of India, the petitioners challenge the notice dated 22.03.2016 issued by the second respondent in Form 401 as well as the impugned detention order dated 22.03.2016 passed by the second respondent under sectio .....

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heron Traders based in Navi Mumbai, Maharashtra, the first petitioner availed of the services of the second petitioner for transportation of 21,350 kilograms betel-nuts from Delhi to Navi Mumbai, Maharashtra. Accordingly, the truck bearing registration No.HR-55-T-7187 was loaded with the aforesaid goods at Delhi. It is the case of the petitioner that the lorry receipt issued clearly showed that the consignor was M/s Bhagwati Traders, Delhi and the consignee was M/s Sri Bheron Traders, Navi Mumba .....

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orgot to get the transit pass in Form 405 (under rule 52 of the Gujarat Value Added Tax Rules, 2006). On 22.03.2016, the truck was stopped at Changodar road by the authorities, who issued a notice at 2:45 p.m. on the same day, whereby the driver was asked to produce the invoice, lorry receipt and appropriate forms by 3:40 p.m. on the same day. According to the petitioner, the driver was able to produce the invoice and lorry receipt which clearly showed that the goods were only in transit in the .....

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d Tax Act, 2003 detaining the goods loaded in the truck No.HR-55-T-7187, at 04:00 p.m. Being aggrieved, the petitioners have filed the present petition. 5. Ms. Amrita Thakore, learned advocate for the petitioners assailed the impugned notice as well as the impugned detention order under section 70A of the GVAT Act, by submitting that the detention order had been passed in violation of the principles of natural justice. It was submitted that the provisions of section 70A of the GVAT Act are not a .....

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ty of law. It was submitted that the high handedness of the action on the part of the respondent authorities is evident from the fact that the notice was issued to the driver at 02:45 p.m. and the driver was expected to respond to the same by 03:40 p.m. on the same day. Moreover, there was no notice issued to any of the petitioners and hence, the detention order is ex-facie violative of the principles of natural justice and deserves to be quashed and set aside. 5.1 Referring to the impugned dete .....

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was no question of detaining the goods. 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, reiterated the contents of the affidavitin- reply filed on behalf of the second respondent, wherein it has been stated that the driver of the vehicle was not having the bills/builty/invoice/trip sheet with him which are important documents and are to be furnished .....

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on of the dealer was clear, viz., that the goods were to be unloaded at Changodar, but the goods were shown to be transported from Delhi to Mumbai. It was submitted that the driver had stated before the authorities that he was required to unload the goods at Changodar and that this was even confirmed at the time of release of the vehicle by the representative of transporter, who had made statement that his truck was hired by original transporter for transit of goods from Delhi to Ahmedabad. It w .....

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e in the nature of bill/builty and statutory forms by 03:40 p.m. on the same day. At 04:00 p.m., on the same day, that is, on 22.03.2016, the second respondent passed the impugned detention order under section 70A of the GVAT Act. 8. Having regard to the contents of the impugned detention order dated 22.03.2016, it would be apposite to reproduce the same as under: DETENTION ORDER (Under section 70(A) of Gujarat Value Added Tax Act, 2003) The intelligence has been received regarding the movement .....

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viz. - (Transporter name), Ahmedabad. In view of the said notice in Form 401, Shri Nysuddin Asuddin, driver of the said vehicle on -(transporter name) was remind (remained) present before me on today at time 4:00 p.m. He has produced some -. Upon primary verification of the said documents, it is found that he has not produced the required documents viz., System generated Form 403 related to the goods. Name & addresses of the purchasers / sellers / owners of such goods and also the reason of .....

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Annexure A attached with this order. It may be noted that where no claim is made by any person in respect of the goods detained within a period of two days from the date of such detention, the goods shall be seized. 9. As can be seen from the impugned detention order, the same contains several blanks. It is stated therein that the vehicle was stopped at Changodar Road, Ahmedabad under section 67(6) of the GVAT Act, whereas the learned Assistant Government Pleader, under instructions, has stated .....

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e as to what is the nature of the documents which were not produced by the driver. The impugned detention order is in a cyclostyled form and contains several blanks and nothing is stated as to what is the nature of non-compliance on the part of the petitioners. Moreover, as is evident from the facts noted hereinabove, the notice under section 70A of the GVAT Act came to be issued at 02:45 p.m. to the driver of the vehicle calling upon him to respond to the same at 03:40 p.m. Evidently therefore, .....

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