Decided on December 14,1998



Dubagunta Subrahmanyam, Chairman - (1.) ALL these four appeals arise out of common order dated 10.9.1993 passed by Appellate Deputy Commissioner(CT), Kakinada on his file in Appeal Nos. 722/93 -94; 723/93 -94; VZM 49/93 -94 and VZM 50/93 -94. Those four appeals arose before him out of two different confiscation orders passed by the Commercial Tax Officer (Int.) Vijayawada and Commercial Tax Officer, Kasibugga. Confiscation order dated 13.7.1993 was passed by the Commercial Tax Officer (Int.), Vijayawada. Against that order, two appeals were preferred in Appeal No. 722/93 -94 and 723/93 -94. A confiscation order dated 16.7.1993 was passed by the Commercial Tax Officer, Kasibugga. Against that order, two separate appeals viz., VZM 50/93 -94 and VZM 49/93 -94 were preferred. Appeal Nos. 722/93 -94 and VZM 50/93 -94 were filed by Smt. Vizovoli Chakasang (hereinafter referred to as Consignor). The two remaining appeals in Appeal No. 723/93 -94 and VZM 49/93 -94 and VZM 49/93 -94 were filed by M/s. Bikaner Assam Road Lines, Vijayawada (hereinafter referred to as Transporter). Against the common order of the Appellate Deputy Commissioner, T.A. Nos. 915/93 and 918/93 are preferred before this Tribunal by the Consignor. Against the above common order, T.A. Nos. 915/93 and 917/93 are preferred before this Tribunal by the Transporter. The disputed amount involved in the appeals relating to Vijayawada confiscation order is Rs. 1,18,58,000/ - and the disputed amount involved in the appeals relating to Kasibugga Confiscation order is Rs. 83,38,000/ -. We have stated supra that two separate confiscation orders were passed by two different Commercial Tax Officers one at Vijayawada and another at Kasibugga. We now propose to narrate necessary facts leading to the passing of confiscation order dated 30.6.1993 by the Commercial Tax Officer (Intt.) Vijayawada. On 7.5.1993, Spl. A.C.T.O., Vijayawada - Hyderabad Road Check -Post No. 9, Vijayawada checked Lorry No. AP 16 -T 6489 coming from Dimapur, Nagaland with 250 bags of Cloves. The consignment was accompanied by relevant documents. As per the documents, the goods were being transported by the Transporter for delivery to M/s. Ramnivas and Company, Delhi -7. The driver of the lorry informed the Spl. A.C.T.O., that the goods would be transhipped into another lorry for further onward journey at the godowns of the Transporter in Vijayawada. The Spl. A.C.T.O., was not satisfied with the explanation of the driver, as he entertained a suspicion that there is no need to touch Vijayawada, if the goods are to be transported from Dimapur in Nagaland to New Delhi. He also found correction in the date in the way bill. The date was corrected from 4 as 5th. He also found that transit pass was not obtained for entry into Andhra Pradesh State. In view of the above suspicion entertained by him, the Spl. A.C.T.O., detained the goods along with the vehicle until further orders. Subsequently, he passed order detaining 55 bags only, the value of those 55 bags of Cloves being equal to tax due on the total value of goods and three times of the amount of tax as security pending enquiry. He released the remaining 195 bags of cloves. Those 195 bags of Cloves were stocked by the transporter in his godown in Vijayawada. 55 bags of Cloves kept under detention by Spl. A.C.T.O., for realisation of tax and penalty were also kept for safe custody in the godown of the Transporter. The above order was communicated by Spl. A.C.T.O., to the transporter by his notice dated 15.5.1993. On 18.5.1993, Transporter gave a written representation to A.C.T.O., Vijayawada seeking release of the entire stock. In that representation, it was clearly stated that the Cloves were not brought for sale in Andhra Pradesh. It was also stated in the representation that as transit passes were not available, the first border check -post in A.P. i.e., Check Post at Itchapuram after verifying the documents accompanying the goods and being satisfied, allowed the vehicle to pass through the Check Post.
(2.) AFTER detaining the stock of the above lorry, it appears that the Department made some discrete enquiries and felt that the consignee M/s. Ramnivas and Company is indulging in clandestine trade by choosing the present transporter and storing the goods on the flimsy ground of transhipment at Vijayawada. It is so stated in seizure proceedings dated 21.5.1993. On 21.5.1993, Commercial Tax Officer (Int.) Vijayawada inspected the two godowns of the transporter at Vijayawada. It was in the morning time. He found 1,000 bags of Cloves in one godown in Dasa Anjaneyaswamy Street, Bhavanipuram, Vijayawada. He found 1250 bags of Cloves in another godown in Sabhapati Street, Vijayawada. Manager of the Transporter by name Mr. Rajesh Kumar Kochi was available at the time of inspection of the two godowns by Commercial Tax Officer (Int.). Commercial Tax Officer (Int.) recorded a written statement from the above manager of the Transporter, who informed the Commercial Tax Officer that three lorry loads reached Vijayawada on 18.5.1993 and six lorries reached Vijayawada on 19.5.1993. Each lorry carried 250 bags of cloves. He furnished the lorry numbers, the L.R. Particulars and he gave all the documents accompanying the goods including the transit passes issued by the check post at Purushothapuram (Itchapuram). All the transit permits were issued under Sec. 29B of APGST Act, 1957. The goods were shown as proceeding Via Vijayawada and the Consignee for all the nine lorries was shown as Ramnivas and Company, New Delhi. All the documents accompanying the goods as well as the transit passes issued by the Purushothapuram check post authorities were seized by the Commercial Tax Officer (Int.) alongwith the 2250 bags of Cloves invoking the provision in Section 28(6) of APGST Act, pending further enquiry. He issued proceedings accordingly on 21.5.1993. In that proceedings, he stated that in the lorry receipts there is no indication whether quantum of freight charges are to be borne by the Consignor or the Consignee. He also further stated that though the goods were received on different dates and in different vehicles, they were stocked together in a godown. It was further stated that M/s. Ramnivas and Company, was getting the above goods from Dimapur to Vijayawada with an intention to sell the goods in Andhra Pradesh to evade payment of all taxes legitimately due to the Government. He served a copy of his proceedings dated 21.5.1993 on the manager of the transporter at Vijayawada. He also marked copies of his proceedings to the consignor as well as consignee by Registered post. He kept all the bags seized by him in the two godowns of the transporter itself. He obtained a separate letter to that effect from Manager of transporter. On 21.5.1993, the Joint Commissioner (Enforcement) Hyderabad made telephonic enquiries about the consignee Ramnivas and Company, New Delhi with Deputy Commissioner (Enforcement) New Delhi. On 21.5.1993 the Deputy Commissioner (Enforcement) New Delhi sent a letter to Joint Commissioner(Enforcement) Hyderabad. Through that letter, the Joint Commissioner, Hyderabad was informed that Ramnivas and Company, is a registered dealer under Delhi Sales Tax Act. He was also informed that earlier ST -35 forms, F -forms and C -forms of the dealer were declared obsolete and invalid. It was also informed that issuance of statutory forms to the dealer were ordered to be stopped on 30.4.1992. It was also informed that a survey of the premises of the dealer was made on 20.5.1993, it was noticed that there was neither stock nor any books of accounts and the dealer or his representatives were not available. It was stated that the above facts suggested that the dealer is engaged in doubtful activities and therefore, the Ward STO was advised to initiate proceedings for cancellation of the registration certificate. The particulars of the bank accounts of the dealer were also furnished in the above letter. According to the letter, the bank accounts show frequent on hand cash and other hand cheque transactions and that is the familiar modus operandi adopted by the dealers engaged in activities of doubtful nature. On 22.5.1993, Joint Commissioner (Enforcement) Hyderabad sent letter to the Deputy Commissioner, Vijayawada. The Deputy Commissioner, Vijayawada was advised to take immediate appropriate action to safeguard the State Revenue involved in the seized goods and issue necessary instructions to the officers concerned.
(3.) IT was noticed supra that nine lorry loads of cloves reached Vijayawada godown on 18.5.1993 and 19.5.1993 and the above entire stocks consisting of 2,250 bags were seized on the morning of 21.5.1993 by the Commercial Tax Officer (Int.), Vijayawada. After that seizure, one more lorry load of 250 bags of cloves reached the godowns of the Transporter at Vijayawada. The above goods were also accompanied by valid documents of transportation including transport pass issued by Purushothapuram integrated check post.;

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