M.M.KUMAR, J. - (1.) THE instant petition filed under Article 226 of the Constitution prays for quashing detention order dated 7.11.2007 (P-3) and subsequent proceedings thereto. It has further been prayed that direction be issued to respondent Nos. 2 and 3 to release the goods and vehicle with documents without any further delay.
(2.) BRIEF facts of the case are that the petitioner company is engaged in the manufacturing/fixation of elevator and is a registered dealer under the U.P. Sales Tax Act and Central Sales Tax Act, 1956 (for brevity, 'the CST Act'). During the course of its business the petitioner-company agreed with E.P. (India) Ltd. respondent No. 4 to supply and fix ECE Elevator at site No. 5 of Punjab National Bank, Ferozepur Road, Ludhiana. On 31.7.2007, contract was signed prescribing dimensions of the lift and for carrying out installation etc. (P-1). The petitioner-company dispatched the goods vide challan-cum- invoice No. 185, dated 6.11.2007 and challan CED/GZB No. 112, dated 6.11.2007 to respondent No. 4 (P-2 and P-2A). It is claimed that the bills contained all the particulars of the goods viz. quantity, quality, price, tax charged etc. The goods entered Punjab through ICC Import, Shambu Barrier, District Patiala, in vehicle No. HR-39A-9841 belonging to Union Roadways Corporation. On 7.11.2007, the goods were detained by respondent No. 2 vide notice/detention order No. 94, dated 7.11.2007 (P-3) and the following objection was raised :- "TIN No. of Pb. and G.R. consignee not mentioned. As per G.R. goods are to be unloaded at Party godown's of the consignor. Seems to be a works contractor. Needs verification." The petitioner was required to attend the office of respondent No. 2 on 10.11.2007 at 10.00 a.m. to explain the correctness of the documents which were taken into possession by respondent No. 2. Accordingly, the representative of the petitioner approached respondent No. 2 and gave explanation in writing mentioning that VAT No. was not required by the petitioner because it is not doing any business which may amount to sale in the State of Punjab. The goods were meant for self and non-mentioning of VAT No. in the invoice is no deficiency under the rules, giving rise to the detention of the goods, vehicle and documents (P-4). Lateron, respondent No. 2 referred the matter to respondent No. 3. Despite accepting the validity of the documents, the goods were not released and respondent Nos. 2 and 3 insisted for assessment of goods and payment of penalty. The petitioner at that stage approached this Court by filing instant petition. It has been pointed out that under the same facts and circumstances on an earlier occasion also, respondent No. 2 detained the goods of the petitioner, vide detention order/notice No. 18, dated 21.11.2006. When the stand of the petitioner was not accepted, the petitioner approached this Court by filing C.W.P. No. 19392 of 2006. After issuance of notice of motion by this Court, the respondents processed the case and released the goods/documents vide release order dated 8.12.2006 (P-7). In the present case the respondents are deviating by following different course, which is not permissible in law. In the reply filed on behalf of respondent Nos. 2 and 3, by way of affidavit the stand taken is that the relationship between the petitioner and Engineering Products (India) Ltd. respondent No. 4 is that of a contractor and contractee and tax is to be paid on the goods involved in a 'works contract'. It is emphasised that it is 'works contract'. It has been asserted that in the present case neither the contractor nor the contractee are registered under the Punjab Value Added Tax Act, 2005 (for brevity, 'the Act') and the CST Act, in the State of Punjab. It is claimed that they are liable to pay tax and are obliged to file returns in accordance with the provisions of the Act.
(3.) IT has further been asserted that the petitioner has deliberately withheld the VAT number of the consignee-respondent No. 4. A reference has been made to Section 2(z)(u) of the Act to assert that it included any agreement for carrying out for cash even installation or commissioning of any movable or immovable property. It has also been claimed that the petitioner is covered by expression 'person' used in Section 2(t) of the Act. The respondents have claimed that the petitioner was required to come forward for getting the goods released in accordance with the provisions of Section 51(6) of the Act, which require furnishing of adequate security equivalent to the amount of penalty and tax involved, despite the fact that notice under Section 51(7)(b) of the Act was issued. It is repeatedly claimed that the petitioner is conducting its business in the State of Punjab on regular basis and is, thus, required to get itself registered and file regular returns.;