Hon'ble Ritu Raj Awasthi,J.
Heard Sri N.C. Gupta, learned counsel for the petitioner and Sri H.P. Srivastava, for the State.
The petitioner, a registered firm, involved in sales and purchase of packing material, Polythene bags, Disposable goods, Shallae, Plastic Dana, Plastic Scrap, all kinds of Plastic goods, PVC Pipe, Cotton coated Fabrics, Attachi etc., challenges the two orders of the detention passed on the same date i.e. dated 2.10.2010 on the ground that the said orders do not conform to the provisions of Section 50(4) of the U.P. Value Added Tax Act, 2007, hereinafter referred to as the Act. After filing of the writ petition, a show cause notice has been issued under the provisions of Section 48 (4) of the Act but that is not under challenge.
Section 50(4) of the Act is the provision which gives the power to the authority to detain the goods, if during the course of search or inspection he finds that any person transporting or attempting to transport any goods to which this section applies, without being covered by the proper and genuine documents referred to in the preceding subsections and if, for reason to be recorded, he is satisfied after giving such person an opportunity of being heard that such goods were being so transported in an attempt to evade assessment or payment of tax due or likely to be due under the Act.
The aforesaid provision, thus, permits the detention of goods, when any search or inspection is made and any of the conditions mentioned in the aforesaid sub-section, is found to exist. While detaining the goods, the reasons have to be recorded showing the satisfaction of the authority after an opportunity is afforded to the person concerned.
In the instant case, two detention orders, as aforesaid, dated 2.10.2010 have been passed in respect of two vehicles, one in respect of vehicle no. HR 55/J 6493 and the other, in respect vehicle no. HR 38 K 9715.
The detention order passed in respect of vehicle no. HR 38 K 9715 only says as under:
"AAJ DINANK 2.10.2010 KO PRAPT SOOCHNA KE AADHAR PAR VAHAN SANKHYA HR 39 K 9715 JO AAPKE AISBAGH PUL KE NEECHE GODAAM MEIN AAJ UNLOAD HUI HAI,US PAR LOAD MAAL 223 NUG JO KRETA FIRM JAI AMBE ENGTERPRIZES GHAZIABAD SE SAMBANDHIT HAIN TATHA JO FORM 38 SANKHYA BB/3015764 SE LUCKNOW AYATIT KIYA GAYA HAI TATHA MAAL KA PRAKAR POLYESTER PRITID ROL, CCF, NIWAS VETEL CLOTHES, FOOTWEAR & BAG MATERIAL HAI. USKE SANDARBHA MEIN AAPKO NIRDESHIT KIYA JATA HAI KI UKTA PRASHNAGAT MAAL KO KRETA FIRM KO DELIVERY AGRIM AADESHON TAK NA KI JAAYE. AAP YEH SUNISHCHIT KAR LEN KI UKTA VAAHAN KI DELIVERY MAAL SE SAMBANDHIT PRAPATRON KI JAANCH KE UPRANT AGRIM AADESH PRAPT KARNE KE UPRANT HI KAREIN. ALAWA FORM 38 SANKHYA BB/1777230 KRETA SINGHAL FOOTWEAR SE SAMBANDHIT MAAL 45 NUG.... GOODS EVAM 5.5 LIK KI DELIVERY BHI AGRIM AADESHON TAK NA KI JAYE."
The aforesaid order admittedly was passed without making any search or inspection by the officer concerned. There is no whisper in the entire order regarding the satisfaction of the officer about violation of any of the conditions of sub-section (4) of Section 50 of the Act nor any such reason has been recorded.
The second detention order passed in respect of vehicle no. HR 55/J 6493 says as follows:
"NIMNALIKHIT BINDUON PAR AAPKE VAAHAN KA BHAUTIK SATYAPAN EVAM ANYA VISTRIT JAANCH AVASHYAK HAI. ATAH AAPKO NIRDESH DIYE JATE HAIN KI AAP IS VAHAN KO VYAPAR KAR BHAWAN 5 MIRABAI MARG, SHAKTI BHAWAN KE PEECHE, LUCKNOW LEKAR CHALEIN. AAPKE VAHAN KA BHAUTIK SATYAPAN DINANK 3.10.2010 KO -----BAJE KIYA JAYEGA.
(JIN BINDUON PAR VAHAN KI JAANCH AVASHYAK HAI USKA SANKSHIPT VIVRAN) PRAPT SOOCHNA KE AADHAR PAR VAHAN KO CHECK KIYA GAYA. MAAL KA AAYAT DELHI SE LUCKNOW KE LIYE KIYA JANA BATAYA. MAAL BHAGWATI GOLDEN CARRIERS AISHBAGH PUL KE NEECHE GODAM PAR UNLOAD KIYE JAANE KI PRAKRIYA MEIN THA JISE UCHCHADHIKARIYON KE NIRDESH PAR PUNAH LOAD KARAKAR VAHAN MAAL SAHIT JAANCH HETU KARYALAYA LAYA GAYA, MAAL EVAM PRAPATRON KI JAANCH APEKSHIT HAI."
This order also does not record any satisfaction of the authority nor any reason for detaining the goods; rather it says that the physical verification of the vehicle was yet to be done and after reloading the goods the vehicle was brought to the office of Trade Tax Officer where the documents concerning the goods were to be checked yet.
Since the documents were not checked which were available with the transporter in the vehicle, there could not be any reason for satisfaction of the officer regarding violation of any of the conditions of sub-section (4) of Section 50 of the Act, nor any such reason could have been recorded nor was recorded. In the absence of non-compliance of the provisions of sub-section (4) of Section 50 of the Act while passing the order of detention of goods, the orders aforesaid cannot be sustained.
Sri H.P. Srivastava, learned Additional Chief Standing Counsel has very candidly stated that the orders of detention referred to above do not speak about the conditions which are necessary to be complied with while detaining the goods but he submitted that since the show cause notice has not been challenged, therefore, opportunity be given to the State to continue with the regular proceedings.
The learned counsel for the petitioner submits that he has no objection about the aforesaid plea but says that liberty be given to him for approaching the court or appropriate forum against the aforesaid show cause notice. The submission, in nutshell, is that the detention orders being absolutely invalid, the goods be directed to be released.
On perusal of the detention orders aforesaid and after hearing the learned counsel for the parties and considering the provisions of sub-section (4) of Section 50 of the Act, we are of the considered opinion that the two detention orders dated 2.10.2010 issued by the officer concerned are wholly without jurisdiction and they having not been issued in accordance with the provisions of sub-section (4) of Section 50 of the Act are liable to be set aside and are hereby set aside.
As a consequence of quashing of the impugned detention orders, we further direct that the goods in question be released forthwith.
The respondents will, however, be at liberty to proceed with the matter in accordance with law and, thus they can continue with the regular proceedings.
At this juncture, learned counsel for the petitioner submitted that the registration of the petitioner-firm has also been suspended and that the petitioner may be allowed to move appropriate application for recall of the said order or to challenge the same in the appropriate forum, in response to which learned counsel for the State submits that the petitioner has every right to approach the appropriate forum against the aforesaid suspension, for which no directions need be issued by the Court. The submission is that the petitioner is at liberty to take appropriate steps before the appropriate forum under the Act itself.
We, therefore, clarify, that, this order would not come in the way of the petitioner in seeking remedy against the suspension of registration of his firm, for which he is at liberty to seek appropriate remedy before the appropriate forum and if any such application is moved, the same would be considered and decided in accordance with law by the authority concerned expeditiously, without any delay.
The writ petition stands allowed.
Order Date :- 21.10.2010 LN/-