(Per : HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA)
1. By this Special Civil Application, the writ-petitioners have prayed for quashing and setting aside Memo dated January 3, 2012 issued by the respondent authority by which the goods belonging to the petitioners are seized and the truck carrying those has been detained. They have also challenged the order dated January 10, 2012 passed by the respondent No.3 by which the petitioner No.1 was directed to furnish Bank Guarantee by way of security, which, according to the petitioners, is contrary to the provisions of law.
2. The case of the petitioners as made out in the petition is as under:
[i] The petitioner No.1 is a registered dealer doing business of purchase and sale of edible commodities in the name and style of Anand Traders at the address given in the cause title. The petitioner No.1 had placed an order for groundnuts from one supplier, viz. Gurukrupa Enterprises on January 2, 2012. The said goods worth Rs.8,49,660/- were to be sold to a trader at Nagpur, viz. Shreeji Agencies, vide bill No. 20 and entry to that effect is recorded in the books of accounts of the petitioner No.1.
[ii]. Accordingly, on January 2, 2012 the said goods were loaded and have been carried in truck bearing No. GJ.11.Y.6028 owned by the petitioner No.2.
[iii]. On January 3, 2012, the above-mentioned truck carrying the goods of the petitioner No.1 was intercepted at Songadh Check Post and Memo bearing No. 277 was issued by the respondent No.3 by which it detained the truck and seized the goods. The driver of the truck was carrying legal documents required including sales invoice, gate pass etc. The memo issued indicated that the truck was detained in exercise of powers conferred under section 68(4) of the Gujarat Value Added Tax, 2003 [the Act, hereinafter] mainly on the ground that Form No. 402 was not furnished and kept by the driver of truck.
[iv]. The Commercial Tax Officer (3), Ghatak-85, Junagadh inspected the premises and books of accounts of the petitioner No.1 on January 4, 2012 and recorded the statement of the petitioner No.1. At that stage, the aforesaid authority imposed penalty of Rs.79,300/- which was paid by the petitioner No.1 by cheque in respect of an alleged irregular entry not connected with the present transaction.
[v]. Subsequently, by communication dated January 6, 2012, the petitioner No.1 requested the respondent No.2 to release the goods as the petitioner was ready and willing to pay the amount of tax as may be assessed and levied. Pursuant thereto, the Commercial Tax Officer (1), Check Post, Ahmedabad called the petitioner personally on January 7, 2012 for providing accounts of Shreeji Agency, Nagpur to whom the petitioner No.1 has sold the goods. According to the petitioner No.1, as he did not have the same since it was the first transaction with the said firm, he gave a statement in writing to that effect.
[vi]. The respondent No.3 thereafter passed an order dated January 10, 2012 under section 68(5)(b) of the Act thereby directing the petitioner No.1 to furnish Bank Guarantee within two days and that too without passing any order with regard to release of the truck and the goods. In the said order, the respondent No.3 has mentioned that such order was passed in view of telephonic instructions received from the respondent No.2. The respondent No.3 had passed the aforesaid order without giving any opportunity of hearing and without recording any cogent reasons.
3. The writ-petition is contested by the respondent No.3 by filing an affidavit-in-reply and its defence may be summed up thus:
[a]. The goods involved in the case is groundnut which is taxable and declared to be 'specified commodity' under Rule 51 of the Act and accordingly, an order has been issued to that effect by the respondent authority dated October 4, 2006 being order No. GVL/VAT/Rules/R-51(1)/(1).
[b]. The order challenged in the writ-application is an order against which an appeal lies under section 73 of the Act and the petitioners having not availed of the alternative remedy, the present writ-application should be dismissed.
[c]. The vehicle of the petitioners was detained by the Mobile Checking Squad near Songadh Check Post for breach of section 68(3) of the Act as the driver of the vehicle was not carrying log book, bills of sale or delivery note, trip sheet and such other documents relating to the goods carried in the vehicle. The driver was also not carrying a certified declaration 402 as required and contemplated under the Act. Subsequently, the respondent authority exercised its powers under section 68(4) of the Act and gave an order in writing recording reasons, vide order dated January 3, 2012 by which it detained the vehicle and seized the goods.
[d]. For the breach of provisions of section 68(3) of the Act, the petitioners would be liable to tax, interest and penalty as provided under section 68(5) of the Act.
4. On the basis of the aforesaid materials and after considering the submissions made by the learned counsel for the parties, we find that the only grievance of the writ-petitioners is that although they are ready and willing to pay the penalty, interest and tax in accordance with law, the respondent authorities are not either releasing the vehicle detained or releasing the goods.
5. Such being the only grievance of the petitioners, we find that the respondents would not be prejudiced in any manner if we direct the respondent authorities to immediately release the goods and vehicle, provided the petitioners pay the amount of penalty, tax and interest, which, according to the respondents, are payable in terms of the above Act.
6. We, thus, dispose of this writ-application by directing the respondent authorities to pass an order disclosing the total amount payable by the petitioners and to release the vehicle and goods within 24 hours of payment of such amount to the respondents. At any rate, the above amount must be assessed and such assessment should be communicated to the petitioners within two days from today. It is needless to mention that the payment that would be made by the petitioners pursuant to this order would be without prejudice to their rights and contentions in the adjudication proceedings and the parties will abide by the decision in the said proceedings, subject to right of appeal, if any.
This petition is disposed of with the aforesaid directions.
Direct Service is permitted. Issue process forthwith.
[BHASKAR BHATTACHARYA, ACTING C.J.] mathew [J.B.PARDIWALA. J.]