Transport Corporation of India Ltd., XPS (Express Distribution Specialist) a Company v. The State of Bihar

Patna High Court CWJC No.215 of 2013 (5) dt.24-01-2013 Post, Karmnasha, Bhabhua.

#4. The Commercial Taxes Officer, Integrated Check Post, Karmnasha, Bhabhua.

#5. Transport Corporation of India Ltd., XPS (Express Distribution Specialist), a Company incorporated under the Company Act having its administrative office at TCI House, 69 Industrial Area, Sector-32, Gurgaon, Haryana- 122207 through its business Development Officer Sri Narendra Kumar Mishra, son of Sarda Prasad Mishra, resident of plot nos. B-26 and B-28, Gate No.2, Transport Nagar, Patna-800007. .... .... Respondents ====================================================== Appearance : (In both cases) For the Petitioners : Mr. D.V.Pathy, Advocate Mr. P.K.Mishra, Advocate Mr. Lakshmi Nath Sharma, Advocate For the Respondents : Mr. Lalit Kishore, AAG-1 Mr. Vikash Kumar, A.C. to AAG-1 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE)

#5. 24-1-2013 These two Petitions filed under Article 226 of the Constitution arise from the order dated 30th November 2012 made by the Assistant Commissioner of Commercial Taxes, Integrated Check Post, Karmnasha, Kaimur, Bhabhua in exercise of power conferred by Section 60(4)(a) read with Section 60(4)(b) read with Section 56(4)(b) of the Bihar Value Added Tax Act, 2005 (hereinafter referred to as “the Act”). The petitioner in C.W.J.C. No. 215 of 2013 is the 3 Patna High Court CWJC No.215 of 2013 (5) dt.24-01-2013 transporter and the petitioners in C.W.J.C. No. 1509 of 2013 are the owner and the driver of the offending vehicle, a goods carrier bearing registration no.HR-47B-5178. It appears that the transporter hired the offending vehicle to transport certain goods. According to the transporter, the goods were consigned from State of Haryana and were destined to State of Jharkhand. En-route, the vehicle had to pass through the State of Bihar. While entering the State of Bihar, the vehicle was detained by the respondent authorities at Karmnasha Check Post. On enquiry by the respondent authorities, the driver of the vehicle did produce the requisite transit pass, but the same contained discrepancies raising doubts about the genuineness of the information entered. The respondent authorities seized the vehicle and the goods under the power conferred by Section 56(4)(b) of the Act. After following due procedure, under order dated 30th November 2012, the respondents have computed the hypothetical value of the goods at around Rs.25,00,000.00 (twenty five lakhs) and the tax liability at Rs.1,51,835.00. The respondents have imposed the penalty three times the tax liability i.e. Rs.4,55,505.00. Therefore, these Petitions. Learned advocate Mr. D.V. Pathy has appeared for the petitioners. He has assailed the impugned order dated 30th November 2012; the imposition of the penalty and the action of the seizure of the goods and the vehicle. It is not in dispute that against the impugned order, the statutory remedy lies under Section 72 of the Act. We are informed at the bar that for the incidence in question an F.I.R. has been filed and the case is pending in the Court of Chief Judicial Magistrate, Kaimur at Bhabhua. 4 Patna High Court CWJC No.215 of 2013 (5) dt.24-01-2013 The transporter, the petitioner in C.W.J.C. No. 215 of 2013, may avail of the statutory remedy against the impugned order within two weeks from today. The respondents will facilitate the release of vehicle, the Truck bearing registration no. HR-47B-5178, and the goods seized by the respondents and now under the custody of the Court on condition that the transporter, the petitioner in C.W.J.C. No. 215 of 2013, pays a sum of Rs.2,00,000.00 (two lakhs) towards the penalty imposed under the impugned order dated 30th November 2012 and gives a bank guarantee for the remaining amount of penalty. The owner of the vehicle, the petitioner no.1 in C.W.J.C. No. 1509 of 2013 will, within 15 days from today, give an undertaking to this Court to the effect that he will keep the vehicle in question, the Truck bearing registration no. HR-47B- 5178, in roadworthy condition and that he shall produce the vehicle before the respondent authorities as and when required. Copy of such undertaking will be given to the learned Additional Advocate General Mr. Lalit Kishore and will also be produced before the respondent no.3, the Assistant Commissioner of Commercial Taxes, Karmnasha, Kaimur (Bihar). It is further directed that the petitioners will transport the goods through the State of Bihar within seventy two hours of the entry and without unloading the said goods or any part of it in the State of Bihar. Subject to above direction, the Petitions stand disposed of. The petitioners will be at liberty to challenge the impugned order before the appropriate forum. The payment made 5 Patna High Court CWJC No.215 of 2013 (5) dt.24-01-2013 and the bank guarantee given under this order will be subject to the result in the appeal. Copy of the order will be sent to the Assistant Commissioner of Commercial Taxes, Karmnasha, Kaimur, Bhabhua by FAX message at the cost of the petitioners. (R.M. Doshit, CJ) Pawan/- (Ahsanuddin Amanullah, J)