SWATI TRADE RESOURCES Vs. STATE OF U P

JUDGEMENT

(1.) BY the Court.-BY means of the present writ petition, the petitioners are claiming refund of Rs. 3,14,118/- and Rs. 8,46,882/-respectively deposited with the Trade Tax Officer, Special Investigation Branch, U.P. Allahabad for the release of the goods, namely, cement bags which were seized by the said authority.

(2.) BRIEF facts of the case giving rise to the present writ petitions are that the petitioners are carrying on the business of cement at Kathmandu, Nepal. They purchased the cement from Maihar Cement Factory, Madhya Pradesh. It appears that after the purchase of the goods from Maihar Cement Factory at Satna, M.P. the goods were stored at the Godown of M/s. Gorakhpur Resources Ltd. at Iradatganj, Allahabad. It appears that on a inspection made by the Trade Tax Officer, Special Investigation Branch, U.P. Allahabad at the godown of M/s. Gorakhpur Resources Ltd. the said goods were seized and the seizure memo was prepared in the name of M/s. Gorakhpur Resources Ltd. The total number of bags was 21,500, out of which 5817 cement bags belonged to M/s. Moti Lal impex and the balance belonged to M/s. Swati Trade Resources, the respective petitioners. Before the seizing authority, petitioners contended that the goods belonged to them. M/s. Gorakhpur Resources Ltd. also contended that the goods belonged to the petitioners. However, goods were subsequently, released on the deposit of security amount which was claimed to be deposited by the petitioners. After the seizure of the goods by the Trade Tax Officer, Special Investigation Branch, U.P. Allahabad the matter was referred to the Trade Tax Officer, Gorakhpur with whom M/s. Gorakhpur Resources Ltd. was registered under the U.P. Trade Tax Act (hereinafter referred to as "the Act"). The Trade Tax Officer, Gorakhpur initiated the penalty proceeding under Section 15-A(1)(o) of the Act and issued notice to M/s. Gorakhpur Resources Ltd. M/s. Gorakhpur Resources Ltd. contended that the seized cement bags did not relate to it, but they related to M/ s. Moti lal Impex and M/s. Swati Trade Resources. The said plea was not accepted and the penalty under Section 15-A (1) (o) of the Act was levied. Against the said order, M/s. Gorakhpur Resources Ltd. filed appeal before the Deputy Commissioner (Appeal), Trade Tax, Gorakhpur. Deputy Commissioner (Appeal), Trade Tax, Gorakhpur vide order dated 15th July, 2002 allowed the appeal and set aside the penalty order, Deputy Commissioner (Appeal), Trade Tax, Gorakhpur has held that the seized cement bags did not belong to M/s. Gorakhpur Resources Ltd., but belonged to M/s. Moti lal Impex and M/s. Swati Trade Resources. It has also been held that the security money were deposited by M/s. Moti lal Impex and Ml s. Swati Trade Resources. It has been further observed that necessary action can be taken against M/s. Moti lal Impex and M/s. Swati Trade Resources. Against the order of Deputy Commissioner (Appeal), Trade Tax, Gorakhpur, Revenue has filed appeal before the Tribunal. Tribunal vide order dated 22nd August, 2005 dismissed the appeal. Tribunal held that the seized cement belonged to the petitioners and not to M/s. Gorakhpur Resources Ltd. The said order has become final. After the order of the Tribunal, petitioners have claimed for refund of the amount of security deposited by them. The claim of the petitioners have been refused on the ground that the petitioners are not dealer within the State of U.P.

(3.) LEARNED Standing counsel justified the stand of the respondents.