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2016 (9) TMI 717 - GUJARAT HIGH COURT

2016 (9) TMI 717 - GUJARAT HIGH COURT - TMI - Recovery of pending VAT dues - detention of truck - seizure of goods - Form No.403 - Held that: - a statutory authority vested with jurisdiction must exercise it according to its own discretion. Discretion exercised under the direction or instruction of some higher authority is failure to exercise discretion altogether - The respondents are directed to forthwith release the truck of the petitioner which has been unauthorizedly detained by them. - .....

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nable - petition allowed - decided in favor of petitioner. - Special Civil Application No. 3204 of 2016 - Dated:- 21-4-2016 - Harsha Devani And G. R. Udhwani, JJ. Aditya A Gupta, Advocate, Mr AR Gupta, Advocate for the Petitioner Mr Hardik Vora, Asstt. Govt Pleader for the Respondents JUDGMENT ( Per : Honourable Ms. Justice Harsha Devani ) 1. Rule. Mr. Hardik Vora, learned Assistant Government Pleader waives service of notice of rule on behalf of the respondents. 2. By this petition under Articl .....

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y the officer-incharge, check post, Shamlaji, seizing the goods and detaining the vehicle being Truck No.DL-1-LV-9684, at Annexure A , under the Gujarat Value Added Tax Act, 2003 as being illegal, without jurisdiction and without the authority of law; [B] YOUR LORDSHIPS BE PLEASED to issue writ of mandamus or any other appropriate writ, direction or order in the nature of mandamus directing the Respondents to release the seized goods of the petitioner found in Truck No.DL-1-LV-9684 as mentioned .....

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hamlaji Check Post, passed an order dated 21.12.2015, seizing the goods and detaining the vehicle being Truck No.DL-1-LV-9684 on the ground that the truck was not carrying the Form No.403. It is the case of the petitioner that when the discrepancy came to the notice of the petitioner, the petitioner immediately generated an online Form No.403 bearing No.158384480 dated 21.12.2015 generated at 02:57:51 pm and online Form No.403 bearing No.157604672 dated 21.12.2015 generated at 02:52:21 pm. Accor .....

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1.2016 addressed to the Assistant Commissioner of Commercial Tax, directed him to recover the pending VAT dues from Adarsh Enterprise and to release the goods and the truck only upon the payment of tax and 150% penalty. Subsequently, by the impugned order dated 10.02.2016, the Commercial Tax Officer (5), Shamlaji Check Post, Shamlaji directed the petitioner to make payment of tax of ₹ 3,38,562/- and penalty at 150% amounting to ₹ 5,07,843/- and fine of ₹ 2,000/-, in all ₹ .....

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e the goods and detain the vehicle. Under sub-section (5) of section 68 of the Act, the officer-in-charge of the check post or a barrier may, after giving the owner, driver or person-in-charge of goods, a reasonable opportunity of being heard and after holding such further inquiry, as he deems fit, impose on him penalty, in addition to tax payable under the Act, not exceeding one and one-half times of the tax for possession of goods so seized and to release the goods or documents so seized under .....

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cer, therefore, had no authority in law to seize the truck of the petitioner. 5. It was further pointed out that in the impugned order, the Commercial Tax Officer has not recorded any reasons as to why the penalty of 150% is required to be imposed. The attention of the court was invited to the communication dated 06.01.2016 of the Deputy Commissioner of Commercial Tax, to point out that the higher officer had directed him to recover an amount of ₹ 1,54,152/- from Adarsh Enterprise towards .....

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Commercial Tax Officer has acted as per the directions of the higher authority. It was, accordingly, urged that the truck and the goods of the petitioner be ordered to be released forthwith, subject to such terms and conditions as the court may deem fit. 6. On the other hand, Mr. Hardik Vora, learned Assistant Government Pleader for the respondents opposed the petition by reiterating the contents of the affidavit-in-reply filed on behalf of the first respondent. It was submitted that the goods .....

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n the State without paying value added tax thereon. It was submitted that the Commercial Tax Officer was, therefore, wholly justified in imposing penalty of 150%. It was argued that against the order of tax and penalty dated 10.02.2016, there is a remedy of appeal under section 73 of the GVAT Act and hence, the petitioner is required to be relegated to avail of the alternative remedy of appeal under the provisions of the GVAT Act and that no case has been made out for exercise of powers under Ar .....

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is passed under sub-section (5) of section 68 of the GVAT Act, it may be germane to refer to the provisions of sub-section (4) of section 68 of the GVAT Act, which are also relevant for the present purpose. 8. Though the GVAT Act has been brought into force with effect from 01.04.2006, at the time when it came to be originally enacted sub-section (4) of section 68 empowered the officer-in-charge of the check-post to seize the goods and the vehicle. However, by virtue of The Gujarat Value Added .....

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nd the power to seize the vehicle came to be specifically taken away, it is evident that the intention of the legislature was to ensure that since the violation under the provisions of the GVAT Act is in relation to the goods, it is only the goods which should be seized and, accordingly, expressly deleted the power to seize the vehicles and provided for a power to only detain the vehicle. 9. Insofar as the power to detain a vehicle under subsection (4) of section 68 of the GVAT Act is concerned, .....

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e of the goods, the 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 detention for an indefinite period. A reasonable interpretation would mean that once the goods are found in any 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. Thus, detention o .....

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payment of tax and interest which is clearly in excess of the powers conferred on the authorities under the GVAT Act by virtue of sub-section (5) of section 68 of the GVAT Act. 10. In the facts of the present case, the truck in question was detained by the respondent authorities on 21.12.2015 and such detention continues till date despite the fact that there is no power of seizure vested in them under the provisions of the GVAT Act. Evidently, therefore, the petitioner has been subjected to und .....

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the Assistant Commissioner of Commercial Tax to impose penalty at 150% and not to release the truck and the goods till such amount is paid and it is pursuant to such directions that the Commercial Tax Officer has imposed penalty at 150% of the tax amount. Evidently therefore, at all levels, the authorities under the GVAT Act appear to be ignoring the provisions of sub-section (5) of section 68 of the GVAT Act which does not empower them to seize the truck or impose any penalty for release there .....

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eem it fit to pass any further orders in this regard. 12. Examining the impugned order on merits, to the extent the same levies tax in respect of the seized goods, the petitioner is not aggrieved. However, the petitioner is aggrieved by the imposition of penalty at 150% of the tax without there being any discussion on the submissions made by the petitioner or any reasons being assigned for imposing the maximum rate of penalty. 13. On a plain reading of the impugned order in its entirety, the cou .....

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d legal position in this regard may be examined. 14. In CIT v. Greenworld Corpn., (2009) 7 SCC 69, the Supreme Court on the issue regarding a quasi judicial authority acting under the dictates of the higher authority held thus: 53. We may now consider the effect of the noting . The noting of the assessing officer was specific. It was stated so in the proceeding sheet at the instance of the higher authorities itself. No doubt in terms of the circular letter issued by CBDT, the Commissioner or for .....

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ising quasijudicial function keeping in view the scheme contained in the Act, would lose its independence to pass an independent order of assessment. 55. When a statute provides for different hierarchies providing for forums in relation to passing of an order as also appellate or original order, by no stretch of imagination a higher authority can interfere with the independence which is the basic feature of any statutory scheme involving adjudicatory process. 57. Yet again in Purtabpore Co. Ltd. .....

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he power of the Cane Commissioner has been exercised by the Chief Minister, an authority not recognised by Clause 6 read with Clause 11 but the responsibility for making those orders was asked to be taken by the Cane Commissioner. 12. The executive officers entrusted with statutory discretions may in some cases be obliged to take into account considerations of public policy and in some context the policy of a Minister or the Government as a whole when it is a relevant factor in weighing the poli .....

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ion, volition and decision-making authority and be prepared to give way or being pushed back or pressed ahead at the behest of politicians for carrying out commands having no sanctity in law. The Conduct Rules of Central Government Services command the civil servants to maintain at all times absolute integrity and devotion to duty and do nothing which is unbecoming of a government servant. No government servant shall in the performance of his official duties, or in the exercise of power conferre .....

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d apposite. Executive Officers may in exercise of their statutory discretions take into account considerations of public policy and in some context, policy of a Minister or the Government as a whole when it is a relevant factor in weighing the policy but they are not absolved from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for instructions by a superior to bind them. As already stated, we are not recording, for want of ade .....

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m the exercise of drastic power like removal of President of a Municipality under Section 22 of the Act. To say the least, what has been done is not what is expected to be done by a senior official like the Principal Secretary of a wing of the State Government. We leave it at that and say no more on this issue. 16. Thus, a statutory authority vested with jurisdiction must exercise it according to its own discretion. Discretion exercised under the direction or instruction of some higher authority .....

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