M. Pampapathi, Member (D) -
(1.) AGGRIEVED by the dismissal confiscation order passed by the Appellate Deputy Commissioner (CT), Kurnool in Proceedings No. 01/2006 -07 dated 21 -8 -2006, the appellant filed the present appeal before the Sales Tax Appellate Tribunal.
Facts of the case:
The Assistant Commercial Tax Officer (Int), O/o Tirupathi -II Circle, Tirupathi vide his Proceedings No. 236/2005 -06 dated 25 -2 -2006 stated as follows:
"On 13 -2 -2006 at about 4.30 PM, a lorry with Number TN 23 H1147 was checked at Nendragunta Village, near Chandragiri. The said vehicle was carried groundnut seeds from G. Palle allegedly to Bugga Agraharam, Nagari Mandal, Chittoor District and the said goods vehicle were accompanied by the following documents: -
a) Purchase bills issued by M/s. Sri Anitha Traders Bugga Agraharam, Nagari Mandal of Chittoor district with Sl. No. 1, 2 & 3, all dated 13 -2 -2006 which do not contain the signature of M/s. Sri Anitha Traders, Bugga Agraharam in the column related to "the buyer".
c) Way bill with No. 0550747 in original and duplicate versions with the signature of Sri N. Dhanpal Shetty who is not authorized to sign on behalf of M/s. Sri Anitha Traders, Bugga Agraharam.
d) The goods vehicle record (GVR) is not properly written. All the columns in the goods vehicle record related to information is written as 'as per bills'.
All the three purchase bills of M/s. Anitha Traders, Bugga Agraharam, Nagari Mandal, Chittoor District the serial printed numbers are defaced and hand written number are written without any authentication. They do not contain the Signature of M/s. Anitha Traders, Bugga Agraharam in the relevant column of purchaser therein. Thus, all these purchase bills are only legal nullities. Any document which is legal nullity has to be treated as no document at all.
e) in the way bill, all column number 2, in the rectangular space related to date nothing is written and in the rectangular space related to month. '1' is converted as '2'. In the column No. 5 rectangular space the seller's of the groundnut seeds, it is written in one pen, 'purchased from farmers vouchers attached' but below with another pen, it is written 'K. Munuswamy'. Even in the column No. 6 related to quantity of G.N. Seeds also 150 bags worth of Rs. 2,25,5000/ - are written with one pen and below with another pen '45 bags worth Rs. 67,500/ - are written.
f) On weighment, it is learnt that 2300 KGs of groundnut seeds are in excess quantity over the quantity indicated in the way bills and purchase bills. The quantity with the purchase bills vis -vis the quantity indicated in the way bills there is a difference quantity to the extent of 1500 KGs.
g) Though in the documents, it is written that the G.N. Seeds are under movement to Bugga Agraharam, Nagari Mandal, Chittoor District of Andhra Pradesh in the statement given by the driver of the goods vehicle, namely Sri P. Gopal with lorry driving license No. 82/50/VLR on 13 -2 -2006 he clearly stated that the goods are in fact going not to Bugga Agraharam of Andhra Pradesh but to Erode of Tamilnadu.
h) In the light of all the above, it is clear that there are no legally prescribed documents which are answered the description of the sale bill/purchase bills and way bills for the purpose of Rule 55 of the APVAT Rules, 2005 which are legal in nature".
(2.) A show cause notice was issued to seize and confiscate the goods and the appellant filed objections and the dealer also personally represented the case on 24 -2 -2006. The ACTO rejected the contentions of the appellant and confirmed the seizure -cum -confiscation order. Against this order, the appellant filed an appeal before the Appellate Deputy Commissioner (CT), Kurnool and Appellate Deputy Commissioner dismissed the appeal and confirmed the confiscation order passed by the Assistant Commercial Tax Officer (Int), O/o Tirupathi -II Circle, Tirupathi. Against this order, appellant filed an appeal before the Sales Tax Appellate Tribunal.
Grounds of appeal & written submissions filed by the appellant: -
The learned Appellate Deputy Commissioner erred in upholding the confiscation order dated 25 -2 -2006 in case No. 236/2005 -06 confiscating 18,058 KGs of G.N. Seeds worth Rs. 3,61,000/ -. He ought to have seen that the authority concerned issued the proceedings of confiscation contrary to the directions of the Hon'ble High Court order dated 22 -2 -2006 in Writ Petition No. 3133/2006.
The learned Appellate Deputy Commissioner ought to have seen that when it was noticed that Vehicle No. TN 23H 1147 was carrying the goods covered by 3 (three) purchase bills said to have been issued by the appellant bearing serial numbers on 13 -2 -2006 and also the way bill belonging to the appellant with No. 0350747 both in original and duplicate and therefore when the goods were accompanied by statutory documents, there would not be any justification for detention and seizure of goods. The ground nut seeds sold by farmers are not liable to tax and when they are purchased by the appellant through the documents belonging to the appellant were accompanying the goods so purchased by it.
The ACTO is without any authority of law and without jurisdiction under Section 43 of the APVAT Act, 2005. He failed to examine the provisions of Section 43 and the relevant rules and also failed to appreciate that the power to inspect, detain and seize and confiscate is clearly on an officer not below the rank of Deputy Commercial Tax Officer and therefore the ACTO (Int) has no jurisdiction. The learned Appellate Deputy Commissioner ought to have seen that the appellant was a ToT dealer and as such in terms of charging Section 4 of the Act, the liability to tax on TOT dealer being 1%, the goods under detention ought to have been released on payment of tax @ 1%.
(3.) AT the time of hearing, the learned Counsel for the appellant contended that the ACTO has no jurisdiction to check and confiscate the goods. He further contended that under Section 45(7)(b) of APVAT Act, the authority can confiscate the goods if in the said vehicle have without any documents or covered by fictitious documents. The appellant while transporting the goods carried the purchase invoices, way bills and no enquiry has been conducted by the department on the statement recorded from the driver who stated that the goods are being transported to Erode (outside state), the burden is on the department to establish it and if any defects noticed, the same ought to have been compounded.;