M/s.Synergy Green Industries Pvt. Ltd. v. The Deputy Commercial Tax Officer,Puzhal Check–post,Chennai-600 066

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 16.11.2012CORAMTHE HONOURABLE MR. JUSTICE R.SUDHAKARWrit Petition No.30607 of 2012M/s.Synergy Green Industries Pvt. Ltd.,No.392, E Shahupri,P.B.No.201, Kolhapur 416 001,Maharashtra.... Petitioner vs.The Deputy Commercial Tax Officer,Puzhal Check–post,Chennai-600 066. ... Respondent Writ Petition is filed under Article 226 of Constitution ofIndia praying to issue a Writ of Certiorarified Mandamus, tocall for the records of the respondent in the impugnedproceedings G.D.No.3904/12-13 dated 03.11.2012 directing thepetitioner to pay tax of Rs.1,35,575/- apart from compounding feeof Rs.2,71,150/-, quash the same and direct him to release thegoods detained on 02.11.2012 vide Goods Detention NoticeG.D.No.3904/12-13 dated 02.11.2012. For Petitioner : Ms.Radhika Chandrasekarfor Mr.K.Vaitheeswaran For Respondent :Mr.A.R.Jaya Prathap,Additional Government Pleader (Tax) ----- O R D E RThis Writ Petition is filed praying to issue a Writ ofCertiorarified Mandamus, to call for the records of therespondent in the impugned proceedings G.D.No.3904/12-13 dated03.11.2012 directing the petitioner to pay tax of Rs.1,35,575/-apart from compounding fee of Rs.2,71,150/-, quash the same anddirect him to release the goods detained on 02.11.2012 videGoods Detention Notice G.D.No.3904/12-13 dated 02.11.2012. https://hcservices.ecourts.gov.in/hcservices/

2. Mr.A.R.Jaya Prathap, learned Additional GovernmentPleader (Tax) takes notice for the respondent. By consent thewrit petition is taken up for final disposal.3. According to the GD Notice, the consignment moved fromTamil Nadu to Andhra Pradesh, but the documents which wasverified showed that the goods had moved from Chennai to Nellorewith an invoice raised by the dealer at Kohlapur to Nellore.Suspecting the nature of transaction, the goods were detainedunder GD Notice No.3904/12-13 dated 2.11.2012. Thereafter,notice for composition of offence in terms of Section 72 of theTamil Nadu Value Added Tax Act, 2006, has been issued on3.11.2012 demanding tax of Rs.1,35,575/- and compounding fee ofRs.2,71,150/-. The same is under challenge.4. Petitioner submitted a request for release of the goodson 12.10.2012 (it might be 12.11.2012). However, the requisitionhas not been acknowledged. The writ petition has been filed toissue a certiorarified mandamus to quash the GD Notice and theNotice for composition of offence.5. Similar issue was considered by this Court inW.P.No.30269 of 2012 and this Court by order dated 8.11.2012passed the following order:-“5. In the present case, it is not indispute that the goods are transferred from oneState to another State. Section 70(2) of theTamil Nadu Value Added Tax Act, 2006 reads asfollows:-“(2)(a) When any goods specifiedon the Sixth Schedule, are sold orconsigned or transferred by any goodsvehicle to another State from any placewithin the State, the seller orconsignor or transferor of the goodsshall obtain a transit pass in theprescribed form and in the prescribedmanner, from the assessing authorityhaving jurisdiction over the place fromwhere the goods are sold or consignedor transferred to other State. (b) The seller or consignor ortransferor of the goods shall deliveror cause to be delivered, within theprescribed period, the transit pass to https://hcservices.ecourts.gov.in/hcservices/ the officer in charge of the last checkpost or barrier, before the exit of thegoods vehicle from the State.(c) If the seller or consignor ortransferor of the goods fails to complywith clause (b), it shall be deemedthat the goods carried thereby havebeen sold within the State by theconsignor or transferor and such selleror consignor or transferor shall,notwithstanding anything contained inSection 3, be liable to pay tax inaccordance with the provisions of thisAct, irrespective of the quantum ofturnover and also penalty which shallbe one hundred and fifty per cent ofsuch tax.”Hence, as per Section 70(2) of the Tamil NaduValue Added Tax Act, 2006 petitioner has tonecessarily obtain a transit pass in theprescribed form and in the prescribed manner.In such view of the matter, the plea of thepetitioner that the Circular Act Cell-IV/69980/2000 dated 23.11.2000 issued by theCommissioner of Commercial Taxes, Chennai willapply, does not merit consideration as it willhave no force in law after coming into force ofthe 2006 Act. Therefore, the above said pleais rejected. However, an opportunity is givento the petitioner to approach the competentauthority for release of goods in terms ofSection 67(4) of the Tamil Nadu Value Added TaxAct, 2006 on payment of tax. 6. The counsel for the petitioner statesthat another notice has been issued demandingboth the tax and compounding fee. Section 67(4)of the Tamil Nadu Value Added Tax Act, 2006provides for payment of tax or security as maybe required by the authority for the release ofthe goods detained forthwith. Petitioner isentitled to approach the authority and pay thetax or security as may be required under protestand seek release of the detained goods. If thepetitioner pays the tax as required underSection 67(4) of the Tamil Nadu Value Added TaxAct, 2006, the authority is bound to release the https://hcservices.ecourts.gov.in/hcservices/ goods forthwith. 7. Insofar as composition of offence isconcerned, section 72 of the Tamil Nadu ValueAdded Tax Act 2006 provides the procedure forcomposition of the offence and Section 46 of theTamil Nadu General Sales Tax Rules Act isanalogous to the present Section 72 of the TamilNadu Value Added Tax Act, 2006. The prescribedauthority has been defined under Rule 53 of theTamil Nadu General Sales Tax Rules which rule ismade applicable to the 2006 Act in terms ofsection 88(3)(i) of the Tamil Nadu Value AddedTax Act, 2006. A detailed procedure has beenprescribed for composition and an opportunityshould be given before passing an order underSection 72 of the TNVAT Act, 2006. The saidsection prescribes that an order should be passedon composition either way on merits and thepetitioner is entitled to pursue the same onmerits, if aggrieved.8. In such view of the matter, thepetitioner is given liberty to seek release ofthe goods on complying with Section 67(4) of theTamil Nadu Value Added Tax Act, 2006 by paymentof tax alone. Insofar as composition of theoffence, as per notice issued, it has to be dealtwith independently. The goods under detentionshall be released forthwith on payment of tax asdemanded in terms of Section 67 of Tamil NaduValue Added Tax Act, 2006. 9. The Writ Petition is disposed of asabove. No costs.”6. In the light of the above decision, the petitioner isgiven liberty to seek release of the goods on complying withSection 67(4) of the Tamil Nadu Value Added Tax Act, 2006 bypayment of tax alone. Insofar as composition of the offence, asper notice issued, it has to be dealt with independently. Thegoods under detention shall be released forthwith on payment oftax as demanded in terms of Section 67 of Tamil Nadu Value AddedTax Act, 2006. https://hcservices.ecourts.gov.in/hcservices/

7. The Writ Petition is disposed of as above. No costs. Sd/ Asst.Registrar(CS-III) /true copy/ Sub Asst.RegistrartsToThe Deputy Commercial Tax Officer,Puzhal Check–post,Chennai-600 066. +1cc to Mr.K.Vaitheeswaran, Advocate Sr 69721+1cc to Spl. Govt.Pleader (Taxes) Sr 69976TEJ(CO)km/21.11. W.P.No.30607 of 2012