Rajes Kumar, J. - (1.) The present writ petition under Article 226 of the Constitution of India, the petitioner seeks the following reliefs (i) Issue a writ order or direction in the nature of mandamus commanding the respondent No. 3 to give the refund of Rs. 50,000/- to the petitioner for which petitioner become entitled after the order of the Tribunal dated 03.11.1995 in view of Section 29 of the U.P. Trade Tax Act. (ii) Issue a writ order or direction in the nature of mandamus commanding the respondent No. 3 to calculate and pay the interest @ 18% per annum on Rs. 50,000/- from the date of the Tribunal order dated 03.11.1995. (iii) Issue any other writ order or direction which this Hon'ble High Court may deem fit and proper under the facts and circumstances of the case. (iv) Award cost of the petition to the petitioner.
(2.) The brief facts of the case set out in the writ petition are that the petitioner is a Transporter engaged in transporting the goods of various parties from one place to another place. The petitioner booked certain goods from Delhi in Vehicle No. DIG 7081 for delivery of the same at Assam. While entering inside the State of U.P. at T.P. Nagar Check Post, Ghaziabad, the driver of the Vehicle obtained Transit Pass No. 3019 dated 17.11.1991 in respect of goods loaded in Vehicle and it is alleged that on 19.11.1991, the driver of the Vehicle submitted the said Transit Pass to the Check Post Officer, Tamkuhi Raaj, Deoria for necessary endorsement. The Check Post Officer instead of passing the said Transit Pass, seized the goods and demanded security at Rs. 79,514/- for the release of the goods. The seized goods was finally released on furnishing of Bank guarantee for Rs. 50,000/- as directed by the Tribunal. In pursuance of the seizure of the goods respondent No. 3 levied penalty at Rs. 79,514/- under Section 13-A(4) of the Act vide order dated 11.1.1993. The petitioner filed appeal before the Assistant Commissioner (Judicial) which was dismissed vide order dated 02.02.1994. It is stated that during the pendency of appeal, respondent got the Bank guarantee encashed for Rs. 50,000/- and adjusted the said amount with the amount of penalty levied vide order dated 11.1.1993. Against the order of Assistant Commissioner (Judicial), Trade Tax, petitioner filed Second Appeal before the Tribunal under Section 10 of the Act. The Division Bench of Tribunal, Varanasi vide order dated 13.11.1995, allowed the appeal and set aside the penalty order. it is, stated that after getting the certified copy of the Tribunal order dated 03.11.1995, petitioner approached the respondent No. 3 for refund of the amount which was recovered by encashing the Bank guarantee of Rs. 50,000/-. It is stated that the respondent No. 3 has not given any heed on the submission of the petitioner. Thereafter, several applications have been sent by post and finally an application-dated 20.12.1999 has been filed. Even no action has been taken on the application-dated 20.12.1999, therefore, the present writ petition has been filed.
(3.) In paragraph 3 of the Counter Affidavit, it is stated that the deponent had no knowledge about the order of Tribunal and after receiving the petition, deponent had got knowledge about the order of Tribunal dated 03.11.1995, by which, the Tribunal has quashed the penalty order. It is, stated that the original file was not traceable and he deponent had prepared at duplicate file and after tracing out all the records from various offices, prepared the refund voucher for Rs. 50,000/- and informed the petitioner on 03.9.2000 by registered post. With regard to the averment made in paragraph 15, 16 and 17 of the writ petition about filing of certified copy of the Tribunal order dated 03.11.1995 and the application for claim of refund in the counter affidavit in paragraph 8, it has only been stated that there was no evidence to proof that the deponent had filed copy of Tribunal order dated 03.11.1995 in the offence of the deponent.;