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M/S LOTUS BEAUTY CARE PRODUCT PVT LTD versus COMMISSIONER, TRADE TAX & ANOTHER

High Court of Judicature at Allahabad

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M/S Lotus Beauty Care Product Pvt Ltd v. Commissioner, Trade Tax & Another - SALES/TRADE TAX REVISION No. 1635 of 2005 [2005] RD-AH 4191 (7 October 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court no. 55

Trade Tax Revision no.  1635 Of 2005.

M/S Louts Beauty Care Product Pvt. Ltd., Haridwar (Uttaranchal)

... Applicant.

        Vs

Commissioner of Trade Tax, U. P. Lucknow. ...Opp. Party.

Hon'ble Rajes Kumar, J.

Present revision under Section 11 of U. P. Trade Tax Act (hereinafter referred to as "Act") is directed against the order of Tribunal dated 10.08.2005 relating to the assessment year 2005-06 under the U.P. Trade Tax Act, by which, the Tribunal has confirmed the seizure of the goods and directed to release the seized goods on furnishing of security to the extent of Rs.1,03,392.75 Paise.

The brief facts of the case are as follows:-

Applicant is carrying on the business at Haridwar and is registered under the Uttaranchal Trade Tax Act.  It had claimed that certain items were purchased from M/S Dow Corning India Pvt. Limited, Bhivandi, Thane (Maharashtra), M/S Hindustan Lever Private Limited, Pondicherry and M/S Anil Chemicals Industries Limited, Aurangabad (Maharashtra).  Since the goods were not in a good condition, they were rejected and being returned to the aforesaid three parties, in respect of which, three Challan nos. 190, 191 and 192 were prepared for 160 Kg. Seal Quite Mixture in the name of M/S Dow Corning India Pvt. Ltd., Thane (Mah.), 300 Kg. Star Cat in the name of M/S Hindustan Lever Ltd., Pondicherry and 11880 pieces of Ponds Tube in the name of M/S Anil Chemicals India Limited, Aurangabad respectively.  The goods were despatched through the Transport Company M/S Om Sai Transport Company.  However, only one bilty no. 123 dated 14.6.2005, was prepared for the entire goods and as per Builty goods was to be delivered at Rajshree Road Lines, Ghaziabad.  On 15.6.2005 Vehicle was intercepted by the Asstt. Commissioner, Trade Tax (Mobile Squad), (II) Unit, Ghazibad, in which, 12 bags of Chemical Powder, 8 Cane Liquid and 54 Plastic Cartoon were found.  In the Challans and builties, a seal of Check Post were found affixed which were without any signature of the Officer.  Goods was detained on the ground that alongwith the goods, there was no declaration Form and goods have been imported inside the State of U. P. without proper declaration at the Check Post, Bhorahari.  Subsequently, goods was seized and a sum of Rs.2,75,714/- was demanded towards security.  Application under the proviso of Section 13-A(6) was rejected by the Deputy Commissioner (Enforcement), Trade Tax, Ghaziabad vide order dated 10.7.2005.  Against the order passed under Section 13-A (6), applicant filed appeal before the Tribunal.  Tribunal vide impugned order, allowed the appeal in part.  Tribunal justified the seizure of the goods on the facts and circumstances, but has reduced the amount of security to Rs.1,03,392.75 Paise.

Tribunal has justified the seizure of the goods on the ground that the goods was coming from Haridwar, Uttaranchal and at the time of inspection, three Challans were found alongwith the builty no. 123 and admittedly according to the builty, goods were to be delivered at Ghaziabad.  Tribunal was of the view that if the goods was meant for outside the State of U. P. at three destinations then three separate builties should be prepared and there should be a mention in the builty that the goods would be transferred to another Vehicle at Ghaziabad for further movement to the three destinations, but there was no such mention.  Tribunal also observed that Form 34 should be obtained at the entry Check Post, if the goods was meant for outside the State of U. P.  Tribunal was prima facie of the view that present is a case where the goods was imported inside the State of U. P. with an intent to evade tax.

Heard learned Counsel for the parties.

Learned Counsel for the applicant submitted that the Tribunal has illegally justified the seizure of the goods merely on a technical ground.  He submitted that three Challans which were found alongwith the Bilty clearly show that the goods were coming from Haridwar and were meant for three destinations namely Ahmedabad, Pondicherry and Maharashtra outside the State of U. P.  He submitted that inadvertently instead of three separate builties, only one builty was prepared by the Transporter and inadvertently, Form 34 could not be obtained at the entry Check Post, Bhorahari.  He submitted that 3 Challans were available at the time of inspection, clearly establishes that the goods was meant for outside the State of U. P., therefore, seizure of the goods is wholly unjustified.  In support of his contention, he relied upon the decisions of this Court in the case of Ashok Kumar Burnwal Vs Sales Tax Officer, Mobile Squade, Hapur and another (1987) 6 STR 37 and M/S South Eastern Roadways, Ghaziabad Vs. Commissioner, Trade Tax, U. P. Lucknow and another reported in 2005 NTN (Vol. 27), 280.  Learned Standing Counsel submitted that the present is a clear case of an attempt to evade payment of tax.  He submitted that admittedly as per the bilty, goods was to be delivered at Ghaziabad, thus, goods was intended for import inside the State of U. P., therefore, provision of Section 28-A is applicable. He submitted that the documents do not show that the goods had to move further to outside the State of U.P. after their transfer in  any another Vehicle.  If the goods was meant for outside and intend would be to take away outside the State of U. P., Form 34 could have been obtained at the entry Check Post and three separate builties would have been prepared for three destinations and in the bilty, there should be a mention about the proposed transfer of goods from one Vehicle to another Vehicle for further transportation of the goods to three different destinations.

I have perused the order of Tribunal and the authorities below.  I do not find any error in the order of Tribunal.  Merely because, three Challans have been issued in the name of three different parties for Ahmedabad, Pondicherry and Bhivandi (Maharashtra), it does not establish actual movement of goods to outside the State of U. P.  Admittedly builty no. 123 was meant for delivery of goods at Ghaziabad, therefore, it has rightly been presumed that the goods was intended for import at Ghaziabad.  Builty does not show that the goods would be transferred in another Vehicle for further transportation of the goods to three destinations.  If the goods was meant for outside the State of U. P. then Form-34 would have been applied at the Entry Check Post, Bhorahari, but no Form 34 was applied.  In these circumstances, prima facie I am of the view that the movement of goods was meant for import inside the State of U. P. and was not supported by any declaration.  Thus, the seizure of the goods and demand of security can not be said to be illegal and arbitrary.

The case cited by the learned Counsel for the applicant are not applicable to the present case.  In the case of Ashok Kumar Burnwal Vs Sales Tax Officer, Mobile Squade, Hapur and another (supra), it was found that the Chasis which was brought inside the State of U. P. was not meant for sale, therefore, the seizure of the goods was set aside.  In the case of M/S South Eastern Roadways, Ghaziabad Vs. Commissioner, Trade Tax, U. P. Lucknow and another, it was found that the goods was coming from outside the State of U. P. and was meant for transportation outside the State of U. P., and not for sale inside the State of U. P., therefore, the seizure of the goods on the facts of the case, was held to be unjustified.

In the result, revision fails, and is, accordingly, dismissed.  However, the findings recorded in the order and in any of the order relating to seizure proceeding may have no effect in the penalty or any other proceedings.

Dt:07.10.2005.

MZ/-


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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