2005 (8) TMI 369

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....es, Varanasi. A declaration form (form XXXI) issued under the U.P. Trade Tax Act, 1948 (referred to as "the Act") had been sent by the purchaser to the appellant in connection with the sale of the gambier. The gambier was despatched by truck from Bombay. At the Uttar Pradesh check- post the goods were detained on August 19, 1989. Certain documents were produced. The documents were found to be discrepant. A show cause notice was issued by the then Trade Tax Officer-II (hereinafter referred to as "the TTO-II"), Sahayata Kendra, Trade Tax, Jhansi, to the truck driver on 20th August, 1989. It was alleged in the show cause notice, inter alia, that the appellant dealt in chemical and solvent and that the existence of the selling dealer was doubtful. As far as the purchasing dealer was concerned, it was said that the form XXXI was issued to the firm to import lime stone and coal and it was not registered or authorised to trade in gambier. It was also said that the registration certificate had expired and that the signature of the present dealer on the documents produced did not tally with the signature of the proprietor already on record. It was also noted that there was a discrepancy in ....

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....er, it was only subsequently, on 21st October, 1999, that the Assistant Commissioner (Check-post), Raksa, relying on the evidence of the TTO-II regarding the enquiry at Mumbai, rejected the application submitted by the appellant under section 13-A(6) on the grounds: (i) The application uunder section 13-A(6) is not maintainable as the person is not the owner of the goods. (ii) The goods were imported into the State without proper and genuine documents and also with the intention to evade tax. (iii) The person who signed the application and had shown himself as partner in the firm M/s. Bharat & Co., Mumbai, has been actually found not a partner in the records of Mumbai sales tax records. 7.. On 31st March, 2000, the appellant's appeal before the Trade Tax Tribunal was allowed. It found that the appellant was the owner of the gambier since delivery was not complete. 8.. In the circumstances, the appeal was allowed and the matter remanded back to the Assistant Commissioner (Sahayata Kendra), Jhansi, with the direction that he shall decide the matter afresh on merit after looking at the comments in the order. 9.. On remand, the Assistant Commissioner again rejected th....

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....lf. It is, therefore, undisputed that at least physical delivery of the goods was not made.   13. On 4th November, 2000, an order was passed by the TTO attaching the gambier on the ground that the recovery certificates totaling Rs. 18 lakhs had been received by the Assistant Collector (Collection), Trade Tax, Jhansi, wherein it was directed that after the release of 400 bags of gambier to M/s. Maa Kamkshya Lime Industries, Varanasi, from Sahayata Kendra, Raksa, the recovery of the arrears covered by recovery certificates against M/s. Kamakhya Lime Industries totally Rs. 18 lakhs may be made. Since the goods had been formally released they were attached. The TTO who issued the order of attachment said that 400 bags of gambier were being entrusted to his personal custody with the instruction that he shall not deliver the goods to any one else without the prior permission of his office and would make the goods available at the time of the auction proceedings. 14.. It was against this order that the writ petition which culminated in the impugned order was passed. Before we consider the reasoning of the High Court it may be noted that the High Court had issued an interim orde....

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....aa Kamakhya Lime Industries could be recovered from the goods in question. The appellant filed an application for review of the judgment which was dismissed by the High Court. 18.. Initially the special leave petition had been filed from the order dismissing the application for review. Subsequently, an application for amendment of the petition was filed including a challenge to the order of the High Court. At the hearing the application for amendment was not opposed and is allowed. 19.. In our opinion, the High Court was wrong in dismissing the appellant's petition. The Trade Tax Tribunal as early as on 31st March, 2000 had held that the appellant had the locus standi to ask for the release of goods because the appellant was the owner of the goods. The decision of the Tribunal was not challenged by the respondents. The decision of the Tribunal not being challenged, the issue of title was concluded in the appellant's favour. In the face of this order, it was not open to the Assistant Commissioner, Trade Tax, on remand to reject the application of the appellant on the ground that it was not the owner of the goods. The High Court should have considered this aspect of the matter ....