TaxTMI 
TaxTMI 
1997 (7) TMI 631
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....e Matloob Ahmad and others. The goods were seized by the mobile squad of the sales tax department on the ground that the same were not accompanied by the documents, prescribed by the Act. The agent of the city booking agency contacted the Sales Tax Officer and pointed out that the goods were in transit to Bhoosa Toli City Agency and consequently the Sales Tax Officer could not have seized the same on the way to the city booking agency. The Sales Tax Officer, however, refused to deliver the seized goods. 4.. The Deputy Commissioner, Sales Tax, Kanpur, then initiated proceedings under section 13-A(6) of the Act against the goods seized on July 17, 1985. A show cause notice under section 13-A(3) read with section 28-A of the Act had been issued to Matloob Ahmad calling upon him to appear on July 18, 1985 before the Sales Tax Officer, Mobile Squad, Kanpur. On behalf of the railway, a representation was made and one Sri Rajendra Prasad, Senior Research and Development Officer appeared on behalf of the railway administration. The railway relying on section 28-A(8) of the Act pleaded that the goods seized on July 17, 1985 were in its custody which would end only after the goods having be....
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.... been utilised for taking the goods from railway parcel office to the sub-agency, the Deputy Commissioner could have not held that the goods at the time of seizure belonged to the consignee and its possession was not with the railway department." 7.. This is how this Court while deciding the writ petition had taken the view that the goods transported through the railway, continued to remain in the custody of the railway and, therefore, the protection as provided by sub-section (8) of section 28-A of the Act, could be availed of by the petitioners and that the seizure of the goods whilst they were in the custody of the railways, was illegal. 8.. This Court also pointed out that the "Sales Tax Department also does not claim its right to seize the goods while in custody of the railway" and thus correct interpretation of sub-section (8) of section 28-A was not in dispute. What was disputed was the finding of fact as recorded by the Deputy Commissioner that the delivery of the goods had been taken by the consignee from the railways. 9.. The judgment dated September 30, 1986 of this Court [Union of India v. Sales Tax Officer (C.M.W.P. No. 914 of 1986)] came to be challenged before the....
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....ng to them was indeed a part and parcel of the 'Railway' as defined in the Railways Act, the seizure of the goods was unlawful. The Deputy Commissioner considered the said plea and rejected it under an elaborate order dated August 20, 1985. The Deputy Commissioner referred to the facts stated in the report of the seizing officer and observed that 'it is a well-known fact that the responsibility of depositing the octroi tax with regard to any consignment by the consignee starts only after its being delivered to him by the transport agency and since the octroi in the instant case was paid by Sri Raj Kumar, it is, therefore, established that the consignment/goods had been got released from the transport agency by Sri Raj Kumar'. The Deputy Commissioner further observed that Sri Matloob Ahmad was neither an employee of the Railway nor was he having a contract to transport the goods of railway alone. The Deputy Commissioner further pointed out that according to paragraph (4) of the agreement/contract between the railway and M/s. Komal Prasad Ashok Kumar, contractor of Bhoosa Toli city booking agency, the goods have to be transported between the railway station and the agency through a m....
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....issioner erroneous." Having so observed, the Supreme Court reproduced the reasoning of the High Court and thereafter held in para 5 at page 607 of 96 STC; page 278 of UPTC as follows: "..............But before we consider the provisions relevant to the above contention, it is necessary to clarify that the question whether the goods being transported from the railway godown were being in fact transported to city booking agency (assuming for a moment that it is part of Railway) is always a question of fact. A mere claim to that effect is not conclusive. In fact, the grievance of the sales tax authorities is that a large scale evasion is going on under the cover of transporting the goods from the railway station to the city booking agencies. Their case is that goods are being transported to the premises of dealers under the guise of and with the connivance of the said agencies and that this fraud is resulting in loss of crores of revenue to the State. We shall, therefore, first examine whether the High Court was justified in interfering with the finding of fact recorded by the Deputy Commissioner in this case: Now, the power of the sales tax authorities to stop and check the goods b....
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.... under section 13-A(6) and no protection as provided under sub-section (8) of section 28-A could be availed of by the petitioners, for consideration afresh according to law. From the above reproduced and delineated portion of the judgment of the Supreme Court, it is manifest that the finding recorded by the Deputy Commissioner is a finding of fact which ought to have been questioned in an appeal, provided under the Act, if the petitioners felt aggrieved of that. In the light of these observations of the Supreme Court, we refrain from entering into the findings of fact, recorded by the Deputy Commissioner and hold that the petitioners may challenge such finding of the Deputy Commissioner which is a finding of fact in appeal, if not already challenged. 12.. The Supreme Court yet observed towards the end of para 5 at page 608 of STC; 278 of UPTC as under: "This finding of ours should have concluded the civil appeal but we were requested by both the parties to determine the larger question, viz., whether the railway booking agencies do or do not form part of the 'railway'? While we agree that the said question should be decided, we find that the relevant material is not placed befor....
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....y booking offices and other ancillary services is relevant for the purpose of this case. Para 2631 refers to city booking office and city booking agency. Para 2633 provides that the instructions in regard to through booking arrangements, remittance of cash, submission of bills and additional returns in connection therewith, as detailed in the preceding paragraphs for out agencies will also apply to city booking offices/agencies. City booking office "and" and "out agencies" may be two different concepts but para 2633 indicates that the instructions which are applicable to out agencies, are also applicable to city booking agencies and, therefore, it is nothing but appropriate to refer to paragraphs relating to out agencies, which commence from para 2601. Para 2601 defines the expression "out agency" and states that an out agency is an office, opened in places situated away from the railway station, in order to facilitate the booking of traffic directly to or from such places in conjunction with the railway. Section 3(11) of the Act of 1890 defines the word "traffic" as under: " 'traffic' includes rolling stock of every description, as well as passengers, animals and goods, etc." 15....
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....th a list in duplicate, of such packages in the pro forma appearing at appendix XXVI-A. This para enjoins upon the station staff receiving the packages from the out agencies to compare the entries in the list with the packages and booking documents and return one copy of the list to the out agent after indicating thereon the total number of packages received. 21.. Para 2609 directs that the station staff receiving the packages from the out agent should enter the same in a transhipment register to be maintained for this purpose quoting the particulars of the despatch in the relevant column of the transhipment register. 22.. Para 2610 relates to the consignments booked to the out agency and received at the serving station. It requires that the goods should be entered in a transhipment register to be maintained for this purpose and the out agency receiving the packages should compare the entries in the list with the packages made over to him. 23.. The out agency charges levy for transport of luggage, parcels or goods to and from the out agency which require to be shown separately on the luggage tickets, way bills and invoices. (see para 2612). The out agent will be responsible for ....
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....oking agency receive remuneration for the services rendered as per the contract and the contractor is fully responsible for the safety of the goods as is the railway administration. It is the duty of the city booking agency to account for the entire parcels to the serving station and also the entire receipts. The city booking agency is required to maintain the same document/forms and that has to follow the same procedure as prescribed in the Manual for the railways. 26.. From the manual and the agreement deed, the only inference that can be drawn is that the city booking agency is nothing but an office of the railway and hence "railway" within the meaning of section 3(4) of the Act of 1890 and of section 2(31) of the Act of 1989. Legal position of other city booking agencies will be the same if their agreements do not contain any condition, contrary to the instructions, as stated in the manual. But in this case, agreements of other agencies having not been filed, we will confine our observations only to the city booking agency being run by M/s. Kamal Prakash Ashok Kumar. 27.. As already pointed out, the Supreme Court (Sales Tax Officer, Kanpur v. Union of India [1995] 96 STC 602;....