G. BALRAJ Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) THIS appeal is preferred by M/s. G. Balraj, Ahmedabad aggrieved by the order of Addl. Commissioner (CT), (Legal), dt. 2.11.2002 in CCT's Ref. No. L.III(2)/1105/2002 by which Addl. Commissioner revised the order of Appellate Deputy Commissioner (CT), Punjagutta Division, Hyderabad dt. 9.7.2002 in Appeal No. P/160/2002 -03 and set -aside the same in exercise of his power under Section 20(2) of APGST Act. The facts leading to the filling of this appeal are as follows. The Deputy Commercial Tax Officer, M.G. Road Circle, Secunderabad passed order dt. 4.6.2002 in LC/08/OR/1/02 confiscating the goods which are Submersible Pumpsets/Kits and accessories under Sec. 29(6B) APGST Act read with Rules 47 & 48 of APGST Rules stating that these goods are found hidden beneath 80 BTBV Gum power bags which are transported from Ahmedabad to Secunderabad in Lorry No. GJ 11U -8517 which was found by the Dy. Commercial Tax Officer when he inspected the vehicle during the course of vehicular traffic check and during the unloading of the goods. The Dy. Commercial Tax Officer states in his order that on noticing these goods, he asked the Driver of the Lorry to produce the documents accompanying the vehicle, but the Driver stated that the goods were asked to be delivered to M/s. Sri Srinivasa Road Lines, Secunderabad. But the Manager of the said Road lines who appeared before the Dy. Commercial Tax Officer disclaimed the goods and stated that he does not know to whom they have been consigned and he also furnished a letter to that effect. Therefore, the Dy. Commercial Tax Officer shifted the goods in the same lorry to Commercial Taxes Department stock yard, Sanathnagar for further verification. He states that though one day passed, no claimant turned up claiming the goods with any proper evidence and therefore he issued notice for seizure and confiscation of these goods to the Driver of the lorry calling for objections if any within (3) days from the date of receipt of the notice. But the Driver or Owner of the goods neither filed any objections nor paid taxes and penalty and therefore he concluded that the goods are coming without any documents to willfully evade the taxes and hence they are liable for confiscation. Challenging the order of Dy. Commercial Tax Officer, the appellant herein filed appeal before the Appellate Deputy Commissioner (CT)., Punjagutta Division, Hyderabad stating that he is the owner of the goods transporting them from Gujarat to Hyderabad for selling the same in twin cities and he was not present at station when the goods are checked by the DCTO and he came to know of the checking, unloading, seizure and confiscation of the goods on arriving at the station and on enquiry with the transporter. He pleaded that he is a casual trader and the goods arrived earlier than the owner and there was no occasion to report to the assessing officer the arrival of the appellant or the goods as per Law. He pleaded that the notice issued to the Driver did not reach the appellant and was not served on the appellant and he is prepared to file Form - AA as required by the relevant rules and pay tax on the sale of these goods. He filed before the Appellate Deputy Commissioner the xerox copies of lorry receipts. The ADC records in his order that the appellant filed before him Xerox copies of lorry receipts. The ADC held that no reasonable opportunity was given by the DCTO in this case as required by Section 29(6B) of APGST Act before confiscating the goods as notice on the Driver was served on 1.6.2002 and the confiscation order was passed on 4.6.2002 and as the notice was served on the Driver of the lorry who was illiterate and who was not having any knowledge of the owner/transporter of the goods the opportunity given was inadequate to trace the owner and bring to the knowledge of the owner the fact of confiscation of the goods and therefore the order of Dy. Commercial Tax Officer is liable to be set -aside. The Appellate Deputy Commissioner also held that the intention of the appellant is to be a casual trader in the State of Andhra Pradesh during the season of digging bore wells where there will be need for the supply of parts of rig equipment. He observed that the goods are transported from Gujarat State to the State of Andhra Pradesh and the appellant did not reach the city of Hyderabad by the time confiscation was completed and therefore there was no opportunity to the appellant to intimate the concerned assessing authority and the appellant's readiness to pay the tax on the confiscated goods itself vindicates stand taken by the appellant. Thus, the Appellate Dy. Commissioner set -aside the order of confiscation as not maintainable by allowing the appeal and further directed the appellant to secure release of the goods on payment of tax of Rs. 21,991/ - at 8% on the declared sale value of goods at Rs. 2,74,890/ - and he also directed the appellant to pay an amount equal to the tax by way of penalty for the failure to furnish necessary documents along with the transport of goods. Accordingly, he directed the Dy. Commercial Tax Officer to release the goods after collecting the tax and penalty as decided by him.

(2.) THE Addl. Commissioner revised the order of Appellate Deputy Commissioner and set -aside the same restoring the orders of Deputy Commercial Tax Officer in exercise of his powers under Sec. 20(2) of APGST Act. The Addl. Commissioner issued show cause notice to the appellant proposing revision stating that the order of appellate authority does not speak about any evidence as to how the appellant was identified to be the real owner and the appellate authority never bothered about the source from where the appellant acquired the goods in question and the appellate authority erred in acting upon the lorry receipts which were brought subsequent to the confiscation and he further erred in entering the shoes of the assessing authority and quantifying the tax payable by the appellant and imposing a minimum penalty and letting free a person who is not proved to be a real owner to take away the goods. The Addl. Commissioner further observed in the show cause notice that the recourse for the appellate authority should have been remanding the matter to the inspecting officer for de novo enquiry for identifying the real owner after exhausting all the possibilities and pass a proper order as per Law. The appellant filed reply to the show cause notice stating that he is a casual trader and owner of the confiscated goods. He pleaded that he received original confiscation orders from the transporters which is a proof to establish that he is the owner of the goods and he is in possession of purchase bills of the goods purchased at Ahmedabad and also original lorry receipts. He pleaded that he was not present at Hyderabad and by the time he came to Hyderabad from Ahmedabad, the inspecting officer hurriedly passed the confiscation orders and he is prepared to identify himself and prove the ownership of the goods and requested for dropping the revision. After receiving the reply, the Addl. Commissioner passed final orders setting aside the order of Appellate Deputy Commissioner and restoring the order of DCTO observing that till the date of the order nobody turned up before him and adduced evidence of the ownership of the goods and also personal identity of Sri G. Balaraj that he purchased the goods from Ahmedabad and sold in Secunderabad and as the dealer did not come forward to produce the evidence in support of his claim, it is proved beyond doubt that he is the benami sham person produced before the Department by the unknown clandestine dealer who advised the illegal method of transport of goods in the name of fictitious person and therefore there is no other alternative except to set -aside the order of Appellate Deputy Commissioner in view of the facts and circumstances explained in the show cause notice.

(3.) ON the other hand, the Learned State Representative supported the order of revision made by the Addl. Commissioner pleading that the appellant has not produced any documents establishing his identity and ownership of the goods and as the goods are not covered by proper documents, the Dy. Commercial Tax Officer rightly passed confiscation order which are upheld by the Addl. Deputy Commissioner by setting aside the orders of Appellate Deputy Commissioner. He pleads that the observation made by the Addl. Commissioner regarding remand to be made by Appellate Deputy Commissioner to the inspecting officer for de novo enquiry, is only one of the reasons for finding fault with the order of Appellate Deputy Commissioner and for setting aside the order of ADC and it is not the proposal made for the purpose of revision.