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2020 (9) TMI 162

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....mmercial Tax intercepted the goods conveyance bearing No.KL-48/H-3892 which was carrying arecanut on 30.01.2019 at about 5.35 p.m. at Bagalkot road. The driver in charge of the goods conveyance tendered the invoice for verification and as per the invoice No.A189 dated 23.01.2019 the consignor was M/s. T.K.K.Traders, Kerala, GSTIN-32AFOPK 7597P1ZF and consignee has been shown as A.V. Traders, Maharashtra with GSTIN-27BRYPA0538F1ZQ and arecanut of Rs. 5,88,000/- with waybill bearing No.521081341498 another invoice bearing No.A42 dated 23.01.2019 consignor has been shown as K.S. Arecanut Stores, Kerala with GSTIN-32AXFPH1073 C1Z6 and consignee as Akkino Traders, Maharashtra GSTIN-27ACVPT6266E1ZV arecanut of Rs. 30,87,000/- with waybill bearing No.531081339649. It is further alleged that on verification of the said document it is noticed that the driver of the goods vehicle has taken 5 days to reach from Tumkur to Vijayapura and the statement of the driver was recorded which reveals that the vehicle has been loaded with 300 bags (each bag containing 70 kg of arecanut) from M/s. K.S. Arecanut stores, Chalissery Road, Perumannur, Palakkad, Kerala and he has further stated that another 40....

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....return the balance amount out of Rs. 75,33,620/- to the petitioner. Challenging the same the Government is before this Court. 6. It is the submission of learned Additional Government Advocate that the learned Single Judge ought not have exercised the extra ordinary jurisdiction under Article 226 of the Constitution of India when the respondents had efficacious and alternative remedy by way of an appeal under Section 107 of the Act. It is his further submission that the impugned order is erroneous. As far as merits of the case is concerned, the only order that could have been passed is to pay the applicable tax and penalty equal to 100% of the tax payable on such goods as per Section 129 of the act. But the refund of the amount excess after deducting the tax itself is not correct. 7. He further submitted that even though there is no prayer for payment of the penalty and refund of the amount, the learned Single Judge has exceeded his jurisdiction and passed the impugned order. It is his further submission that when the ownership of the goods itself is questioned and the same has to be determined before the payment of the tax and the return of the amount, until and unless the valid....

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....onsideration the said aspect has passed the impugned order. There is no illegality or irregularity in passing the impugned order. On these grounds he prayed to dismiss the appeals. 9. We have carefully and cautiously gone through the submissions made by the learned counsels appearing for both the parties. 10. On perusal of the copy of the writ petitions, the respondents have challenged the order of detention passed under Section 129(1) dated 01.02.2019 as per Annexure-A and also order dated 25.02.2019 passed by respondent No.3 under Section 129 (3) of the Act as per Annexure-A1 and they have also challenged the order dated 11.04.2019 passed under Section 130 (1) of the Act which has been produced at Annexure-A2. On perusal of the order of the learned Single Judge, he has not determined whether the impugned orders which were under challenge were sustainable in law or not. Until and unless the validity of the order is either upheld or quashed, no other ancillary relief can be given to the petitioners. When it is the specific contention of the Government that the goods which have been carried in conveyance is not belonging to the respondents and they are not the owners, then under ....

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....hall be deemed to be concluded. (6) Where the person transporting any goods or the owner of the goods fails to pay the amount of tax and penalty as provided in sub-section (1) within seven days of such detention or seizure, further proceedings shall be initiated in accordance with the provisions of section 130: Provided that where the detained or seized goods are perishable or hazardous in nature or are likely to depreciate in value with passage of time, the said period of seven days may be reduced by the proper officer." 130. Confiscation of goods or conveyances and levy of penalty - (1) Notwithstanding anything contained in this Act, if any person-- (i) supplies or receives any goods in contravention of any of the provisions of this Act or the rules made thereunder with intent to evade payment of tax; or (ii) does not account for any goods on which he is liable to pay tax under this Act; or (iii) supplies any goods liable to tax under this Act without having applied for registration; or (iv) contravenes any of the provisions of this Act or the rules made thereunder with intent to evade payment of tax; or (v) uses any conveyance as a means of transport for carria....