- (1.) M. Katju, J. Heard Sri Bharatji Agarwal, learned Senior Advocate and Sri Kunwar Saxena for the petitioner and Sri R. D. Gupta for the State Government.
(2.) THE petitioner has prayed for a writ of certiorari to quash the impugned show-cause notice dated 9-5- 2000 Annexure 10 to the writ petition and for a mandamus for releasing the goods detained on 7-5- 2000. Gaunter and rejoinder affidavits have been filed and we have perused the same. Sri Bharatji Agarwal, learned Counsel for the petitioner submitted that a circular has been issued by the State Government dated 24-5-1994 which has been reiterated by circular dated 25-9-1998 vide Annexure 1 1 to the writ petition. That circular states: Clause 2 (kha) of the aforesaid cir cular states that once a vehicle has crossed the entry check post it will not be checked by the mobile squad. In paragraphs 6 and 7 of the writ petition it has been alleged that the goods in question had crossed the entry check post Drummondganj on 6-5-2000 at 9. 30 p. m. where they have been checked by the Trade Tax Officer of the check post whose statement is Annexure C. A. 1 to the counter-affidavit. Hence Sri Bharatji Agarwal has contended that the detention of the goods by the Trade Tax Officer, mobile Squad at Varanasi was in violation of the above circular.
(3.) IN reply to this argument learned Counsel for the Department has invited our attention to Rule 84 (1) of the U. P. Trade Tax Rules, 1948 which states as fol lows: "at every check post or barrier or at any other place, when so required by the officer-in charge of the check post or by an officer em powered under Section 13 or 13-A or under Rule 3-A or 4, the owner, driver or any other person-in-charge of the vehicle or vessel, as the case may be, shall stop the vehicle or vessel and keep it stationary for as long as may be required by such officer. He shall also allow such officer to examine the contents of the vehicle or vessel and to inspect all documents and records relat ing to the goods carried, which may be in his possession or in the possession of any other person in the vehicle or vessel. " The argument of the learned Coun sel for the Department is that a circular cannot override the Rules made under the Act. However, Sri Bharatji Agarwal invited our attention to the decision of the Supreme Court in Commissioner of Sales Tax v. M/s Indra Industries, JT 2000 (2) SC 441. In paragraph 3 of this judgment it has been stated as follows: "the said in effect till date. It has not been shown that it has been withdrawn. It is, therefore, very remark able that it should be contended on behalf of the very Sales lax Department whose Commissioner issued that circular that it is erroneous. It is very remarkable that the Sales Tax authorities should instruct their Assistant Commissioners who deal with tax assessment in a manner which is according to them, contrary to the law. ";