TMI Blog2018 (2) TMI 1297X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner is neither a manufacturer nor a purchaser of the detained goods. It was only the machinery which was sent by the petitioner from its Unit at Bachupally to its Manufacturing Unit at Pydibhimavaram for the purpose of erection. This stand of the petitioner is not contradicted by the respondents. There is not even an allegation that the transaction involved sale or purchase of the detained goods (machinery) - This being the admitted position there is no obligation on the part of the petitioner to generate e-waybill of the Commercial tax Department of the State of Andhra Pradesh as, ipso facto Rule-55 of the Rules is not attracted. The detention of goods in the instant case is wholly without any sanction of law and the same is, accordingly, declared as illegal and unauthorised - petition allowed - decided in favor of petitioner. - Writ Petition No.27026 of 2015 - - - Dated:- 4-12-2017 - MR. C. V. NAGARJUNA REDDY AND SRI AMARNATH GOUD For The petitioner : Mr. S.Dwarakanath For The Respondents : Mr. Shaik Jeelani Basha ORDER: ( per Hon ble Sri Justice C.V.Nagarjuna Reddy) The petitioner is a leading manufacturer of bulk drugs and formu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present Writ Petition. By an interim order, dated 25.8.2015, while issuing notice before admission, a Division Bench of this Court has directed release of the detained goods, subject to the petitioner depositing a sum of ₹ 5 lakhs, by making it clear that the amount so deposited shall be subject to the result of the Writ Petition or any other proceedings that may be taken up in future. We are informed at the hearing, that the petitioner has complied with the said interim conditional order and the detained goods were, accordingly, released. On behalf of the respondents, respondent No.1 filed a counter-affidavit wherein he has inter alia stated that under Section-45(7)(a) of the Act, where goods are carried without paying tax, if any, payable or goods are carried without being properly accounted for in the documents referred to in Clause- (b) of Sub-section-(2), the said Officer shall collect the tax payable on the goods so carried and in addition, levy a penalty not exceeding two times the amount of tax payable on such goods after giving a reasonable opportunity to the person likely to be affected against the proposed penalty. It is further stated that Sub-section-(2) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... District, Andhra Pradesh. The detention of goods, argued the learned counsel, on the ground of non-observance of the procedure prescribed under Rule-55 of Rules, is wholly illegal. He has also pointed out that the stand taken by the petitioner in the affidavit that respondent No.1 was right in detention of goods was under mistake of law and that, on a proper reading of Section-45 of the Act and Rule-55 of the Rules, the petitioner was advised to submit that even the initial detention of goods by respondent No.1, on the ground of non-accompanying of e-waybill of the State of Andhra Pradesh, itself is illegal and unauthorised. Mr. Shaik Jeelani Basha, learned Special Standing Counsel for Commercial Taxes (Andhra Pradesh), made strenuous attempt to convince this Court that Rule-55 of the Rules is attracted in the present case and that, in view of breach of the said Rule, the detention of goods is legal and proper and the petitioner is liable to pay the tax and penalty, as specified in the impugned detention order. We have carefully considered the respective submissions of the learned counsel for the parties with reference to the material on record. Sub-section-(1) of Section- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been sale or purchase of goods carried and in such a case, whether such sale or purchase is liable to tax. Under Clause-(ii) of Sub-section-3 of Section-45 of the Act, where the sale or purchase of goods carried has, for the purpose of payment of tax, not been properly accounted for in the documents referred to in Clause-(b) of Sub-section-(2) and the officer concerned is satisfied, after making such enquiry as he deems fit, that with a view to prevent the evasion of tax payable in respect of the sale or purchase of the goods carried, it is necessary to detain the goods, he shall detain the goods and direct the driver or any other person in-charge of the goods vehicle or vessel or consignment or consignee to pay such tax or to furnish security for an amount equal to two times the amount of tax payable in such form and in such manner and to such authority as may be prescribed, on behalf of the person liable to pay such tax. An analysis of the aforesaid provisions leaves us in no doubt that the officer concerned is empowered to exercise the power of detention of goods only where he is prima facie satisfied that the movement of goods is covered by the transaction of sale or p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examine the exact nature of the transaction in this instant case. The petitioner has filed copies of Proforma Invoice issued by its Unit at Bachupally, Ranga Reddy District, Telangana State and e-waybill generated from the official website of the Commercial Tax Department of the Government of Telangana. The Proforma Invoice shows that a machine, described as Extruder with Accessories (Total 14 Corrugated Boxes) was transported from Bachupally to Pydibhimavaram SEZ. Under the heading terms of payment it was shown as free of charge . In the CST e-waybill of the Commercial Tax Department of the Government of Telangana, in Column No.5, option-(d) reads as from shop or godown to another shop or godown for purpose of storage or sale . It is not in dispute that the petitioner is neither a manufacturer nor a purchaser of the detained goods. It was only the machinery which was sent by the petitioner from its Unit at Bachupally to its Manufacturing Unit at Pydibhimavaram for the purpose of erection. This stand of the petitioner is not contradicted by the respondents. There is not even an allegation that the transaction involved sale or purchase of the detained goods (machinery). ..... X X X X Extracts X X X X X X X X Extracts X X X X
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