1. The short question that is raised in this revision petition is whether the Tribunal was right in holding that the order of confiscation of certain goods in the instant case is an order which comes within the scope of Section 31 enabling the petitioner to file an appeal before the Appellate Assistant Commissioner.
2. The officer in charge of the check post found a lorry conveying 291 tins of cocoanut oil on 13th October, 1960. Enquiries revealed that the consignment was for the assessee. Thereafter, further enquiries were held, which resulted in showing that the assessee had been receiving similar consignments of about 2,000 tins in all. On the basis of this, the officer, who is also the assessing authority, estimated the turnover of the assessee at Rs. 1,25,000 and odd. He levied a tax of about Rs. 3,000, and imposed a penalty in addition. The order that he passed was in these terms :-
I hereby give Sri S. Krishnaswami Chettiar of Koolanaickenpatty the option to pay a tax of Rs. 3,751-89 and a penalty equal to double the sum of tax due, viz., Rs. 7,503-78, which work out to a total sum of Rs. 11,255-67 within 7 days from the date of receipt of this order, in lieu of confiscation of the goods.He is further informed that his failure to conform to the above condition within the stipulated time will lead to the only other alternative of confiscation of goods.
3. Against this order, the assessee appealed to the Appellate Assistant Commissioner, who held that no appeal lay. A further appeal was taken to the Sales Tax Appellate Tribunal. The Tribunal came to the conclusion that Section 31 of the Madras General Sales Tax Act did provide for an appeal against an order of this description and directed the hearing of the appeal by the Appellate Assistant Commissioner. It is against this order of the Tribunal that the State has filed the present revision petition.
4. Section 31, which provides for the filing of appeals against certain orders of the Sales Tax Authorities, is worded thus in so far as it is relevant:
Any person objecting to an order passed by the appropriate authority under section or Sub-section (3) of Section 42 may, within a period of thirty days from the date on which the order was served on him.appeal against such order.
5. The short question, therefore, is whether the order which we have extracted above is or is not an order within Section 42(3). If it is within the scope of Section 42(3), there is no doubt that an appeal does lie to the Appellant Assistant Commissioner. Turning now to Section 42, Sub-section (3) thereof reads thus :
The officer in charge of the check post or barrier, or the officer empowered as aforesaid shall have power to seize and confiscate any goods.
Provided that before ordering confiscation the officer shall give the person affected an opportunity of being heard and make an enquiry in the prescribed manner.
Provided further that the officer ordering the confiscation shall give the person affected option to pay in lieu of confiscation...
6. The two provisos to the above sub-section are differently worded. The first proviso directs the officer to hold an enquiry in the prescribed manner and give the person affected an opportunity of being heard before he proceeds to make an order of confiscation. The second proviso enjoins upon the officer the duty of giving an option to the person affected of redeeming the goods by payment of the tax and penalty, if any, while ordering confiscation. It is clear, therefore, that an order for confiscation must necessarily be coupled with the kind of option that is contemplated by the proviso. It is not possible for the officer to make an order for confiscation alone. What the learned Government Pleader argues, however, is that the present order is not a final order, that is to say, there is no order of confiscation which has been finally made ; that such an order can be made only if the person against whom the order is made has failed to comply with the direction contained in the order, that is to say, if he fails to pay the tax and the penalty indicated in the notice. We are not satisfied that any notions of a final order can be brought into play, when the section conferring the right of appeal under Section 31 is not conditioned in any such manner. The section gives a right of appeal against an order made under Sub-section (3) of Section 42. It is beyond dispute that the present order is one which falls within that section. The fact that if the petitioner complies with the option, the goods may be released from the order of confiscation passed does not mean that there is not an order which is within the scope of Section 42(3). Construing the terms of Section 31, which gives the right of appeal, we are satisfied that the Tribunal reached the correct conclusion in the matter that an appeal does lie in the circumstances of the case.
7. The petition fails and is dismissed with costs. Counsel's fee Rs. 100.