2007 (1) TMI 501

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....roperly accounted for in terms of the penalty or under the provisions of the Act and is therefore seeking a refund of the amount. The version of the petitioner is that the petitioner who has a unit in Daman, a Union Territory, was transporting certain goods from its factory to its place of business at Bangalore and the goods were in transit by way of stock transfer ; that it had reached the destination and at the time of unloading the goods it was inspected by the Commercial Tax Officer (Mobile Squad), respondent No. 2 herein. It is the further version of the petitioner that the respondents virtually threatened the driver of the vehicle that the vehicle was not carrying the supporting documents ; that the document did not indicate tha....

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....that even in terms of the endorsement at annexure K, the petitioner had been apprised that unless the order passed by the Commercial Tax Officer levying this penalty is set aside in the manner known to law, the question of entertaining the application for refund does not arise and in support of the same, learned Government Advocate has also placed the records before the court containing the order dated July 25, 2003 passed by the second respondent. While it is admitted that copy of this order was never furnished to the petitioner, the justification for this order is on the very undertaking given on behalf of the petitioner in terms of the letter dated July 25, 2003 virtually admitting that the petitioner is prepared to pay penalty and there....

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....g on the purporting undertaking given by the petitioner itself, I find it rather difficult to sustain the retention of the amount. If an order had already been passed and if the amount should have been adjusted against that, perhaps that could have been justified. The undertaking assuming that it had been given cannot be a substitute for a statutory provision whereunder alone a penalty can be levied by an authority under the Act. For levy of any penalty there should be an enabling provision and penalty should be levied strictly in accordance with the statutory provision and only after giving an opportunity to the person to be penalised. As none of these procedures have been followed, the request for retention of the amount of Rs. 55,000 ....