KALYAN ELECTRONICS Vs. COMMISSIONER OF SALES TAX U P LUCKNOW
LAWS(ALL)-1990-5-55
HIGH COURT OF ALLAHABAD
Decided on May 03,1990

KALYAN ELECTRONICS Appellant
VERSUS
COMMISSIONER OF SALES TAX U P LUCKNOW Respondents

JUDGEMENT

R. K. GULATI, J. - (1.) This writ petition is directed at the instance of two petitioners, namely, M/s. Kalyan Electronics and M/s. Kalyan Engineering Works. Both the petitioners are engaged in business at Agra. It is claimed, the first petitioner is manufacturing alternators while the second petitioner manufactures diesel engines. Respondents 4, 5 and 6 by their order dated 15th January, 1990, purporting to act under section 13-A of the U. P. Sales Tax Act, 1948 (for short "the Act") effected a seizure of certain articles described in the order as eight generating sets. The said seizure was effected by intercepting a vehicle bearing No. DBL 8967 on the grounds, inter alia, that the seized articles were not accompanied by proper documents and were also not accounted for in the account books of the petitioners. The case put forward by the petitioners is that the seized articles are not generating sets, but are eight alternators, eight diesel engines and some spare parts which have wrongly been held to be generators while effecting the seizure. According to the petitioners, two separate supply orders were received from M/s. Hisaria Machinery Stores, a dealer from Rajasthan. By one order the first petitioner was required to supply nine alternators and by the other order, the second petitioner was required to supply eight diesel engines and some spare parts. As both these orders were from a common dealer, for convenience, the petitioners consigned the disputed goods by separate invoices but through a common carrier. Further, the case of the petitioners is, that the seizure was wrongly effected, inasmuch as the goods seized answered the description of articles in the two supply orders aforesaid and tally with respective invoices raised by the first and second petitioners accompanying the consignment. It is necessary to point out that in terms of sub-section (6) of section 13-A of the Act, the seizure order also stated that pending further action, the goods can be released on depositing the amounts mentioned in the order by way of security. On a representation by a partner, common to both petitioners, the Assistant Sales Tax Commissioner (Administration) modified the seizure order by saying that the goods may be released on furnishing bank guarantee instead of cash payment. It is asserted that the goods are still in the custody of the sales tax authorities as the petitioners have not so far opted to get them released. It appears, thereafter, the petitioners moved the Commissioner of Sales Tax U. P. , respondent No. 1 for appointment of an expert to find out whether the seized articles were generating sets capable of producing electricity or the said articles correspond to the articles mentioned in the two bills (annexures 5 and 6 to this writ petition) and other documents which accompanied the consignment seized. This request of the petitioners was rejected by the Commissioner of Sales Tax saying that he had no jurisdiction to make such an order in the matter. It is in the background of these facts that the present writ petition has been filed, seeking the relief that this Court may by an order appoint two experts for the purpose for which the petitioners had earlier moved the Commissioner of Sales Tax. Having heard learned counsel for the petitioners at some length, we do not feel inclined to interfere in the matter. The learned counsel was unable to place before us any provision under the Act or the Rules framed thereunder to show that the Commissioner of Sales Tax had any jurisdiction to entertain the kind of application moved by the petitioners and further he possessed the necessary power to pass an order directing the appointment of experts as desired by the petitioners. That being so, we see no infirmity in the action of the Commissioner when he declined to accede to the petitioners' request for spot inspection by experts. Indeed the action of the Commissioner of Sales Tax has not been challenged in this writ petition. There is also no challenge to the action of seizure or the detention of goods. Therefore, it is not necessary for us to go into that question. The solitary relief sought in these proceedings is that this Court in exercise of its writ jurisdiction may appoint two experts for the inspection of the seized articles with a view to obtain a report as to which out of the two contending claims is correct. It is not a case where any action of any authority is being impugned as ultra vires or such authority has refused to exercise its jurisdiction vested in it. The object of filing the writ petition seems to be to forestall the penalty proceedings likely to be taken against the petitioners, and if possible, to procure the release of goods on the strength of experts' evidence. We find no convincing grounds to invoke our writ jurisdiction by exercising our discretion in favour of the petitioners. It would be open to the petitioners to raise such a plea, if so advised, in the penalty proceedings, if any, or in the assessment proceedings as and when the same are taken in due course. In any case we are not prepared to grant a writ only for the purpose of procuring experts' evidence. For what has been stated above, this petition is without any merit and is summarily rejected. Let a certified copy of this order be issued to the petitioners, if possible, within one week on payment of usual charges. Writ petition dismissed. .;


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