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Shaw Scott Distilleries Private Ltd. and anr. Vs. Sales Tax Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Petition No. 654 of 1981
Judge
Reported in[1983]54STC344(All)
AppellantShaw Scott Distilleries Private Ltd. and anr.
RespondentSales Tax Officer and ors.
Appellant AdvocateV.D. Singh, Adv.
Respondent AdvocateStanding Counsel
DispositionPetition allowed
Excerpt:
- - when the respondents which includes the functionaries of the sales tax department of uttar pradesh as well as the state of u. failed to give relief to the petitioners, the present writ petition under article 226 of the constitution was filed in this court. we may also observe that in the return filed by the respondents in this court as well, they have not put forward any other grounds as justifying the seizure of the goods by them. the petitioners are clearly entitled to relief in this petition......varieties of indian-made foreign liquor were being carried under an invoice issued by m/s. shaw wallace & company limited (petitioner no. 2) from kanpur and were meant for m/s. jain & company. from the documents provided by the transport company covering this consignment it appeared that the consignment was loaded at rampur in the state of u.p.2. on 15th september, 1982, a show cause notice was served by the sales tax officer, special investigation branch, agra, upon m/s. shaw wallace and co. ltd., rampur. according to this show cause notice, the value of the aforesaid consignment of 500 cases of indian-made foreign liquor was disclosed at rs. 62,525 and as per the statement of a representative of m/s. shaw wallace & co. ltd. on 10th september, 1981, at the time of a survey made.....
Judgment:

V.K. Mehrotra, J.

1. On the night between 4th and 5th September, 1981, a truck bearing registration No. MPU-6238 was intercepted at the Kotwan Check Post established by the sales tax department and it was discovered that 600 cases of different varieties of Indian-made foreign liquor were being carried under an invoice issued by M/s. Shaw Wallace & Company Limited (petitioner No. 2) from Kanpur and were meant for M/s. Jain & Company. From the documents provided by the transport company covering this consignment it appeared that the consignment was loaded at Rampur in the State of U.P.

2. On 15th September, 1982, a show cause notice was served by the Sales Tax Officer, Special Investigation Branch, Agra, upon M/s. Shaw Wallace and Co. Ltd., Rampur. According to this show cause notice, the value of the aforesaid consignment of 500 cases of Indian-made foreign liquor was disclosed at Rs. 62,525 and as per the statement of a representative of M/s. Shaw Wallace & Co. Ltd. On 10th September, 1981, at the time of a survey made by the sales tax department, the delivery of the consignment had been taken in Rampur itself which created a doubt that the purchase had been made by M/s. Shaw Wallace and Company in the State itself and the value of the consignment had been shown at 'too low a figure in the invoice. It was said that the value of the consignment was at an average of Rs. 370 per case. M/s. Shaw Wallace and Company were asked to show cause why the consignment should not be seized and further proceedings permissible in law be taken against it treating the average value of the consignment to be Rs. 370 per case.

3. The case of the petitioners, of which petitioner No. 1 is M/s. Shaw Scott Distilleries (P.) Limited and petitioner No. 2 is M/s. Shaw Wallace and Company Limited, is that the consignment was in transit from Rampur, in the course of an inter-State sale made by the first petitioner through its selling agent, namely, M/s. Shaw Wallace and Company, to M/s. Jain and Company, Bhopal and further that all the relevant documents were available with the consignment and that the price shown in the invoice was correctly shown as the remaining amount of charges were to be paid by the consignee. Some further grounds were put forward as justification for the price actually shown in the invoice. The petitioners also asserted that the provisions of Section 28-A of the U.P. Sales Tax Act were not attracted nor was the detention of the goods permissible under Section 13-A of the Act. They prayed that the consignment be released forthwith. When the respondents which includes the functionaries of the sales tax department of Uttar Pradesh as well as the State of U.P. failed to give relief to the petitioners, the present writ petition under Article 226 of the Constitution was filed in this Court. While admitting the writ petition to a fuller hearing, this Court passed an order on 24th September, 1981, on the application made by the petitioners for an interim order directing the respondents to release the goods and the truck seized by them. No conditions were imposed upon the petitioners while passing this order.

4. Sri V.D. Singh appearing for the petitioners has urged that even assuming for the purpose of this writ petition that the facts mentioned in the notice dated 15th September, 1982, to be correct, the seizure of the goods was without the authority of law. He has urged that even though, on account of the interim order of this Court, the goods have been released without any condition, the respondents are taking recourse to proceedings for penalising the petitioners, on account of the aforesaid seizure in pursuance of the notice. A copy of the notice has been appended as annexure IV to the writ petition.

5. Section 13-A of the Act in so far as it is material for the disposal of this petition is in the following terms :

13-A. Power to seize.-(1) An officer authorised under Sub-section (2) of Section 13 shall have the powers to seize any goods-

(i) which are found in the dealer's place of business or vehicle or of any other building or place ; or

(ii) which such officer has reason to believe to belong to the dealer and which are found in any place of business or vehicle or building or place

but are not accounted for by the dealer in his accounts or registers or other documents maintained in the course of his business :

Provided that a list of all the goods seized under this Sub-section ection shall be prepared by such officer and be signed by the officer and not less than two respectable witnesses.

(1-A) Where any officer empowered by the State Government in this behalf has reason to believe that the goods found in any vehicle, building or place are not traced to any bona fide dealer or that it is doubtful if such goods are properly accounted for by any dealer in his accounts, register or other documents, maintained in the course of his business, he shall have power to seize such goods and the remaining provisions of this section shall mutatis mutandis apply in relation to such seizure.

6. A perusal of these provisions makes it clear that the power to seize goods is conferred upon an officer authorised in that behalf where either the goods cannot be traced to any bona fide dealer or where it is doubtful if the goods are properly accounted for by any dealer in his accounts, registers or other documents maintained in the course of his business. If these two conditions exist, it would be open to seize the goods and not otherwise. Where, as in the present case, the only allegation contained in the notice given to the petitioners on 15th September, 1982, is that the transaction was one of intra-State sale and the value of the goods appeared to have been shown at an amount lower than what it should properly have been, action under the aforesaid provisions cannot be sustained. We may also observe that in the return filed by the respondents in this Court as well, they have not put forward any other grounds as justifying the seizure of the goods by them.

7. It was stressed by the learned Additional Chief Standing Counsel, appearing for the respondents, that the petitioners were liable to tax under the Act as the sale was an intra-State one according to the facts admitted by a representative of the second petitioner and that they were evading tax by under-invoicing the value of the goods. It is not necessary for us to adjudicate upon the correctness or otherwise of this stand of the respondents for it would be open to them during the assessment proceedings to deal with this aspect. The present petition is confined to the seizure of the consignment made by the respondents and its justification in law. On the facts of the present case and even on the case of the respondents disclosed in the notice dated 15th September, 1982 and the counter-affidavit filed in this petition, it is obvious that the conditions enabling them to effect seizure under Section 13-A of the consignment carried in the aforesaid truck were non-existent.

8. Once it is found that the seizure was without jurisdiction it is obvious that consequential proceedings for imposing penalty in respect of the consignment aforesaid under Section 13-A could not follow for breach of the provisions of Section 13-A. The petitioners are clearly entitled to relief in this petition.

9. In the result the writ petition succeeds and is allowed. The proceedings in pursuance of the notice dated 15th September, 1982, are quashed. The petitioners shall be entitled to their costs.


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