ISWARLAL JAISWAL Vs. COMMISSIONER OF COMMERCIAL TAXES

JUDGEMENT

(1.) THIS writ petition has been filed with a prayer to direct opposite parties 1 and 2 to release the vehicle No. OR -14 -U -8398 belonging to the petitioner detained at unified check gate, Jamsolaghat on the ground that such detention of the vehicle is illegal and arbitrary. The petitioner's case in a nutshell is that he engages his vehicle for the purpose of transportation. M/s. Gupta Roadways, Jakaria Street, Kolkata, asked the petitioner to carry the goods of opposite party No. 3 -M/s. Vinayak Agro Industry from Kolkata to Rourkela on hire payment basis. 16 MT of scrap spring patti leaf was loaded in the vehicle of the petitioner on August 20, 2011. M/s. Gupta Roadways issued consignment note No. 56236 and handed over the documents, i.e., tax invoice, challan of Lokenath Traders, Kolkata, manifest No. GR/4224/11 dated August 20, 2011 along with statutory way -bill No. AAA3391612 in favour of opposite party No. 3. When the vehicle reached at Jamsola check -post on August 22, 2011, the driver of the vehicle produced all the documents in connection with aforesaid goods before opposite party No. 2 for verification. On verification and examination of documents with reference to goods, opposite party No. 2 alleged that the goods were not scrap spring patti leaf rather the goods were auto parts (spring leaf in sets). On the basis of the aforesaid allegation, opposite party No. 2 issued notice dated August 24, 2011 to opposite party No. 3 -M/s. Vinayak Agro Industry and handed over the same to the driver of the petitioner. On receiving the said notice, the petitioner contacted M/s. Gupta Roadways as well as opposite party No. 3 and appraised them about the facts of the case. The petitioner handed over the notice dated August 24, 2011 to opposite party No. 3. The dispute regarding levy of tax and penalty under the OVAT Act by opposite party No. 2 had not been resolved till filing of the writ petition. The vehicle is standing being detained by opposite party No. 2 since August 22, 2011. Hence, the present writ petition is filed for release of the vehicle.

(2.) MR . Santosh Ku. Mishra, learned counsel appearing on behalf of the petitioner submitted that the petitioner being the transporter had produced the required documents, i.e., bills, challans, bilities, statutory way -bills and despatch memo in terms of section 74(2) of the Orissa Value Added Tax Act, 2004 (for short, "the OVAT Act") before opposite party No. 2. So far as the petitioner is concerned, he had not committed any offence spelt out under section 74(2) of the OVAT Act. The petitioner had carried all required documents and produced the same, when the vehicle was stopped for verification and also gave all information in his possession relating to the goods and allowed inspection of the goods to opposite party No. 2 in compliance with section 74(2) of the OVAT Act. It was further submitted that opposite party No. 2 has not issued any notice to the petitioner alleging commission of offence by him in terms of clause (b), (c), (d) or (e) of sub -section (2) of section 74 or provisions of clause (a) of subsection (4) of section 74. The vehicle is exposed to sun and rain and is being damaged. The petitioner has purchased the vehicle by taking loan from Tata Motors Finance Limited, Rourkela and he is required to pay the instalments to the financing company. The petitioner is losing income each and every day as his vehicle is being detained without any fault on his part. Despite the petitioner's prayer to opposite party No. 2 to release his vehicle, the same did not yield any result. Concluding the argument, learned counsel Mr. Mishra prayed for release of the vehicle.

(3.) ON rival contentions of the parties, the question that falls for consideration by this court is as to whether opposite party No. 2 -Assistant Commissioner of Commercial Taxes, Unified Check Gate, Jamsolaghat, Mayurbhanj, is justified in detaining the vehicle of the petitioner.