SALES TAX OFFICER KANPUR Vs. UNION OF INDIA

JUDGEMENT

(1.) A common question arises in these matters. Civil Appeal No. 1635 of 1987 is preferred against the judgment of Allahabad High Court allowing Writ Petition (C) No. 914 of 1986 filed by the Union of India. Civil Appeal No. 5021 of 1989 is preferred against the judgment of the same High Court in Writ Petition (C) No. 2858 of 1987 (filed by the Northern Railway City Booking Agency and another) allowing the writ petition following the judgment in Writ Petition (C) No. 914 of 1986. The writ petitions were filed later saying that they raise the very point involved in Civil Appeal No. 1635 of 1987. The matter arises under the Uttar Pradesh Sales Tax Act. It would be enough if we refer to the facts in Civil Appeal No. 1635 of 1987 and indicate how the common question of law arises.

(2.) Writ Petition (C) No. 914 of 1986 was filed by (1) Union of India through General Manager, Northern Railway, and (2) City Booking Agency, Bhoosa Toli, Kanpur, represented by M/s. Komal Prasad Ashok Kumar. The respondents to the writ petition were the sales tax officials of Uttar Pradesh in addition to State of Uttar Pradesh. The Union of India asked for quashing the order of the Deputy Commissioner, Sales Tax, Kanpur dated August 20, 1985 dismissing an application filed by the Union of India represented by the, Railway Officials for release of the goods seized by the sales tax officials. A further direction in the nature of mandamus was also asked directing the sales tax authorities to release the goods seized (twenty six packages of utensils). The High Court allowed the writ petition.

(3.) On July 17, 1985 at about 5.10 p.m., twenty six packages of utensils were being transported in a Thela (hand cart) drawn by one Matloob Ahmad and others. They were being transported from the parcel godown situated at Platform No. 1 of the Kanpur Central Railway Station. The thela was checked by the sales tax officer (mobile unit) at the Station Road, near the police station, Rail Bazar on the (sic) junction. The officer found that the goods being transported were not accompanied by the requisite documents. It was claimed by persons accompanying the goods that they were transporting the said goods to the city booking agency at Bhoosa Toli. Accordingly, a show cause notice was issued to the said city booking agency. On the next day, i.e., July 18, 1985, Sri Komal Prasad, who holds the contract of the city booking agency, Bhoosa Toli appeared in person but he did not submit any reply to the show cause notice. Accordingly, the officer submitted a seizure report on July 19, 1985 to the Deputy Commissioner. In the said report, the officer stated that on July 18, 1985, he found on verification at the octroi post maintained by the Municipal Corporation, Kanpur situated near Platform No. 1 in the Rail Bazar area of the Kanpur Central Railway Station that the octroi with respect to said goods was deposited by one Raj Kumar under Receipt No. 9953/77 dated July 17, 1985 at 5.10 p.m. in a sum of Rs. 308.25P and that the payment of octroi by Sri Raj Kumar established that the said goods had been delivered to the said Raj Kumar at the Railway Station itself and further that the story of said goods being transported from the Railway parcel godown to Bhoosa Toli city booking agency of the Railways could not be true. The report stated further that if the story of transport from the Railway godown to the city booking agency had been true, there was no occasion or necessity for paying the octroi and that too by a stranger. On the basis of the said report, proceedings were taken by the Deputy Commissioner (SIB, Sales Tax, Central Zone, Kanpur under Section 13(A)(6) of the Uttar Pradesh Sales Tax Act. It is in these proceedings that the Railway officials appeared and applied for release of goods contending that inasmuch as the goods were being transported from Railway godown to the city booking agency, Bhoosa Toli, which accordingly to them was indeed a part and parcel of the "Railway" as defined in the Railways Act, the seizure of the goods was unlawful. The Deputy Commissioner considered the said plea and rejected it under an elaborate order dated August 20, 1985. The Deputy Commissioner referred to the facts stated in the report of the Seizing Officer and observed that "it is a well-known fact that the responsibility of depositing the octroi tax with regard to any consignment by the consignee starts only after its being delivered to him by the transport agency and since the octroi in the instant case was paid by Sri Raj Kumar, it is, therefore, established that the consignment/goods had been got released from the Transport Agency by Shri Raj Kumar." The Deputy Commissioner further observed that Sri Matloob Ahmad was neither an employee of the Railway nor was he having a contract to transport the goods of Railway alone. The Deputy Commissioner further pointed out that according to para (4) of the Agreement/Contract between the Railway and M. s. Komal Prasad Ashok Kumar, Contractor of Bhoosa Toli city booking agency, the goods have to be transported between the Railway Station and the agency through a motor vehicle. In an emergency, however, they could be transported by other means but before so transporting by other means, prior permission/approval from the Railway had to be obtained. The Deputy Commissioner referred to the statement of the representative of the Railway to the effect that no such permission or approval was asked for or given by the Railway administration for the said consignment. He also referred to the statement of the Railway representative on August 7, 1985 that the said representative "could not tell as to on whose behalf Sri Matloob Ahmad was transporting the goods /consignment under reference". The Deputy Commissioner also stated in his order that with a view to verify the gate pass produced by the Railway, the statement of Sri Rajendra Prasad, a senior research and development officer, Railway was recorded who stated that the gate pass which was produced was not a copy of any gate pass issued by the Railway but that it should be considered as a certificate and that it was issued on the basis of the transfer register. The said official further stated that ordinarily "the goods consignment which is made to deliver by the Railway Parcel Office to the City Booking Agency is entered in the Register and signatures in token of its having been received are obtained but no such entry is made in the records of the Railways about the fact that through what means of transport the goods/consignment was transported and by whom transported after it is released by the Railway Booking Agency." On the above basis, the Deputy Commissioner concluded that the gate pass produced does not establish that the said goods were being transported to the Bhoosa Toli city booking agency. He also referred to the fact that the Railway officials could neither produce the consignee of the said goods nor the respective Railway receipts (Bilties). Accordingly, the Deputy Commissioner rejected the application made by the Railway Officials.