JINDAL JEWELLERS Vs. STATE OF PUNJAB

JUDGEMENT

(1.) In this petition, the petitioner has prayed for issuance of a direction to the Assistant Excise and Taxation Commissioner, Ludhiana (respondent No. 2) to refund 75 per cent of the bank guarantee furnished by it for release of the goods.

(2.) The petitioner is the sole proprietorship concern of Shri Rajinder Pal Jindal. It is engaged in the business of manufacturing purchase and sale of diamond studded gold jewellery (hereinafter described as "the goods") at Delhi. It is registered under the Punjab General Sales Tax Act, 1948 (for short, "the Act"). On July 15, 2002 the car in which the proprietor of the petitioner was carrying the goods was intercepted at Ludhiana by the officers of the Excise and Taxation Department, Punjab. They detained the goods on the ground of non-compliance of the provisions of Section 14-B of the Act. The petitioner challenged the detention of the goods and also the constitutionality of Section 14-B of the Act in C.W.P. No. 11232 of 2002 but withdrew the same on July 23, 2002. After two days, the petitioner's proprietor arranged a bank guarantee of Rs. 37,01,301 from Punjab National Bank, Kikkar Bazar Branch, Bhatinda (for short "the Bank") and approached respondent No. 2 for release of goods in terms of Section 14-B(6)(ii) of the Act, but instead of releasing the goods, he passed an order imposing penalty of Rs. 37,01,302. He then accepted the bank guarantee and released the goods at about 6.00 P.M. The grievance of the petitioner is that respondent No. 2 did no supply copy of the penalty order and got the bank guarantee encashed with an ulterior motive of depriving it of the right to avail the remedy of appeal. In paragraphs 5 to 12 of the writ petition, the petitioner has given vivid details of the events which took place between July 25 2002 and July 30, 2002. These include the passing penalty order by respondent No. 2 on July 25, 2002, release of goods at about 6.00 P.M., sending of special messenger by respondent No. 2 from Ludhiana to Bhatinda to get the bank guarantee encashed, preparation of drafts by the Manager of Kikkar Bazar Branch of the Bank presentation of the draft on July 27, 2002 in R.C.C. Branch of the Bank at Ludhiana and clearance thereof on July 29, 2002, filing of C.W.P. No. 11567 of 2002-Jindal Jewellers v. State of Punjab am disposal thereof by the Division Bench of the High Court vide order dated July 29, 2002 (Annexure P3) and communication of the court' order to the manager of RCC Branch, Ludhiana, of the bank by the petitioner's advocate. The petitioner has challenged that the action of respondent No. 2 to get the bank guarantee encashed without supplying copy of penalty order passed on July 25, 2002 and issuing demand notice in terms of Section 11(7) by describing the same as patently illegal, arbitrary and tainted by mala fides.

(3.) In the written statement filed by Shri T.L. Jindal, Assistant Excise and Taxation Commissioner, Ludhiana-III, on behalf of respondent Nos. 1 and 2, an objection has been taken to the maintainability of the writ petition on the ground that the petitioner has got an effective alternative remedy by way of appeal. On merits, it has been averred that the goods were seized because the value thereof was much more than what was indicated in the documents produced by the proprietor of the petitioner and, therefore, it was treated as a case of attempted evasion of tax. In paragraph 5 of the written statement, it has been averred that since the detention of the goods, the petitioner had tried to influence and pressurise respondent No. 2 to release the goods without penalty, but he did not succumb to the pressure and passed the order imposing penalty. With regard to the petitioner's grievance about non-supply of the copy of penalty order, it has been averred that when it had made written request on July 26, 2002 for that purpose, the order was in the process of typing. Thereafter, it could not be dispatched because 27th, 28th, 30th and 31st July were declared gazetted holidays. According to respondent No. 2, copy of order dated July 25, 2002 was received by the petitioner on August 2, 2002. On the issue of encashing the bank guarantee, it has been averred that this was done by the concerned branch manager of the bank before the receipt of order dated July 29, 2002 passed by the High Court in C.W.P. No. 11567 of 2002.