SHIVALIK FIBRES PVT LTD Vs. STATE OF PUNJAB

JUDGEMENT

(1.) PETITIONER has sought issuance of writ of certiorari quashing the proceedings of illegal detention of goods and the truck by respondent No. 2 with the further direction to respondents to release the goods and the truck along with seized documents by him.

(2.) THE petitioner is carrying on business of manufacturing and supply of cotton yarn at Nalagarh (Himachal Pradesh ). Petitioner is a registered dealer under the Himachal Pradesh General Sales Tax Act (for short 'the Act') and the Central Sales Act (for short 'central Act') M/s. Nahar Spinning Mills Ltd. Ludhiana is also a registered dealer under the Punjab General Sales Tax Act, (for short 'punjab Act') and Central Sales Tax Act. The case set up by the petitioner is that in order to supply the cotton yarn to M/s. Nahar Spinning Mills Ltd. the petitioner drew Invoice (Bill No. 13 dated 25. 10. 1993) showing the petitioner as a consignor and M/s. Nahar Spinning Mills Ltd. as consignee. A copy of the invoice is Annexure P-2. According to the petitioner said quantity of cotton yarn could leave the premises after the Central Excise is paid and the gate pass is issued by the Central Excise authority. In the instant case, the gate pass under Rule 52-A and 173-G of the Central Excise Act was issued-Annexure P-3 and so the goods were loaded in the truck and the document accompanying made mention of the name of the consignor and the consignee sales tax No. and Central tax No. , its destination and weight of the cotton yarn. Since the goods carrier could leave the territory of Himachal Pradesh with a declaration in Form St-XXVI-A to be filled in by the selling dealer and to be furnished at the last Sales Tax Check Post in Himachal Pradesh for its entry in Punjab the aforesaid goods were accompanied by such a declaration bearing No. 263164 - Annexure P-5. This declaration was tendered at the Sales Tax Barrier, Dheruwal Multipurpose Barrier in Himachal Pradesh and a certificate was issued by the authority duly certifying that truck No. HPA-7761 carrying cotton yarn of M/s. Shivalik Fibres Pvt. Ltd. was being sent to M/s. Nahar Spinning Mills Ludhiana. The truck carrying the goods was intercepted by the sales tax staff and was asked to hand over the sale bill/invoice, excise duty pass/gr etc. Since the truck carrying the goods was detained by the respondents, the same has been challenged being wholly arbitrary and without jurisdiction.

(3.) NOTICE of motion was issued to the respondents with a further direction to release the truck and the goods subject to the petitioner furnishing a bank guarantee for a sum of Rs. 90,000/ -. The respondents put in appearance and filed written statement. By way of preliminary objection, it is stated that the petitioner has an alternate remedy of appeal/revision under the Punjab Act which admittedly has not been resorted to by the petitioner. Since the petitioner knowingly has not preferred to file appeal, the present petition is liable to be dismissed on this ground alone. Secondly it has been stated that a penalty of Rs. 90,000/- has already been imposed by respondent No. 3 under Section 14-B (7) of the Punjab Act vide its order dated 30. 10. 1993. The order imposing the penalty has not been assailed by the petitioner and on this ground alone, the petition merits dismissal. On facts it has been stated that the bill accompanying the goods did not bear any serial number. The column where bill number is to be printed is left blank. The petitioner knowingly has misled this court and so this petition deserves to be dismissed on this ground alone. Further elaborating it is stated that in fact, the petitioner had been carrying fictitious documents. The modus-operandi of the petitioner appears to be that unserial numbered bills are issued; goods sent to the customer and in the event of their reaching destination without any check, the same are not taken to their regular account books. This precise fact of non-numbering on the bill has in fact been admitted by the Manager of the consignor firm before the detaining authority as well as before the penalising officer. The detaining officer found the documents accompanying the vehicle detained to be improper and ingenuine and thus action initiated in terms of the Punjab Act is legal.