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Judgment
Sanjiv Khanna, J.—Magicon Impex Pvt. Ltd., has filed the present writ petition, which was amended pursuant to the order dated
November 9, 2011, praying, inter alia, for the following reliefs :
(a) Issue a writ, order or direction in the nature of certiorari or any other writ, order or direction of like nature, quashing the orders dated October
29, 2011 and November 4, 2011;
(b) Issue a writ, order or direction in the nature of mandamus or any other writ, order or direction of like nature directing the respondents to
release the goods of the petitioner and the goods vehicle carrying the said goods.
The aforesaid order permitting amendment of writ petition was passed as it was pointed out by the counsel for the respondents that by an order
dated November 4, 2011 tax and penalty of Rs. 1,94,412 each has been imposed.
The petitioner had imported mobile phones and components and the consignment was cleared on payment of customs duty of Rs. 76,207 and
Rs. 61,289, respectively on October 29, 2011. After the customs clearance, the goods were loaded on a goods carrier bearing registration No.
DL-ILG-5406. The said carrier left the IGI airport air cargo at about 10.30 p.m. on October 29, 2011 and was stopped by the officers of
Department of Trade and Taxes at Centure Hotel, which is at a distance of about one kilometre. Statement of Inder Pal, driver of the truck, was
recorded. The said statement is on the cyclostyled pro forma in which blanks had been filled up by hand. In the relevant column under the heading
reasons"" it was mentioned ""verification of bills"". Thereafter, an order was passed under the heading ""maal-roko-aadesh"" which transcribed in
English language will mean ""order to stop the goods"". The said order is also on a cyclostyled pro forma in which blanks have been filled up in
handwriting. The relevant column relating to reasons reads ""verification of documents/bills"".
On October 31, 2011, the petitioner wrote a letter to the Value Tax Officer stating that they had imported the mobile phones and spare parts
which were assessed to duty by the customs authorities at the IGI airport and after customs clearance on payment of duty they were loaded in
truck No. DL-ILG-5406 to be transported to the godown of the petitioner at H-42, Balinagar, New Delhi. The truck was stopped at 10.30 p.m.
on October 29, 2011 and was taken into the respondent''s possession. The petitioner had enclosed relevant papers/documents with regard to
import and payment of customs duty on the consignment.
On November 4, 2011, the respondent-authorities passed an assessment/penalty order imposing total penalty of Rs. 3,88,824 consisting of
VAT at five per cent and penalty equal to the amount of VAT, i.e., Rs. 1,94,412 each. The said order is on a printed standardised format in which
blanks had been filled up in hand writing. The said order is addressed to Inder Pal, i.e., the driver of the truck. It ignores the letter dated October
31, 2011 relied upon, submitted and filed by the petitioner. This letter dated October 31, 2011, is not disputed by the respondent and is on their
record. It is the contention of the petitioner that this order has been passed without even giving notice to him. This is correct as the order does not
record the presence of the petitioner and only records the name of the Inder Pal, the driver of the truck and states as under :
Whereas Sh. Inderpal and Sh...........(advocate/transporter/ driver/dealer/owner as the case may be) appeared before me on November 3, 2011
for the release of goods contained in the above said vehicle.
The order at the bottom is addressed to Inder Pal and the signatures of Inder Pal are available on the said order and he had written that he has
received a copy of the said order. Thus, the petitioner who is the owner was not heard before the order was passed. The printed format of the
order provides two options for reasons for passing of assessment/penalty order, which reads as under :
Goods being transported without bills/proper documents.
Or
Verification of bills/GRs.
The second option ""verification of bills/GR"" has been tick marked. No other reasons or grounds have been stated. Thus the assessment and
penalty of Rs. 3,88,824 has been imposed for verification of bills/GRs.
In the counter-affidavit filed to the writ petition the respondents have alleged that the goods were transported without goods receipt or GR. This
fact is not stated in the statement recorded while seizing the goods on October 29, 2011 and in the maal-roko-aadesh of the same date. As
noticed above in the statement and in the maal-roko-aadesh, the averment made is; ""verification of bills"" and ""verification of documents/bills"",
respectively. In case GR was not available with the driver, it should have been indicated and mentioned in the statement and in the maal-roko-
aadesh.
In the assessment/penalty order again it is not stated that goods were being transported without bills/proper documents, i.e., GR.
The learned counsel for the respondent has submitted that along with the counter-affidavit they have filed copy of statement of Manoj Chauhan,
and Rajinder Singh manager and owner of the transport company which are dated November 17, 2011 and November 18, 2011. Both of them
have stated that the GR or goods receipt produced by the petitioner has not been issued by them and the stamp and signatures on the GR do not
belong to any person working for the said company. They have stated that they have manual GR register and do not have computerised GR
register. The learned counsel for the petitioner, on the other hand, has filed in this court details of computerised GR receipts issued by Rajinder
Tempo Service and has submitted that similar receipts had been issued by several other transporters who have rendered services to the petitioner
from time to time. It is alleged that these statements have been extracted under threat and coercion.
The statement of the manager and owner of the transporter company, as noticed above, were taken on October 17, 2011 and October 18,
2011 and the order of penalty was passed on November 4, 2011. These statements were not the basis/foundation of the order. The statement,
maal-roko-aadesh and the order of assessment/penalty as noticed above refers to verification of bills, verification of documents/bills and
verification of bills/ GRs. Now the respondents in the counter-affidavit have taken a different stand and have stated that the GR was not available
with the driver when the goods were transported and the vehicle was stopped. This fact is not mentioned in any of the three documents, namely,
statement, maal-roko-aadesh and the penalty/assessment order. As noticed above, the column relating to ""goods been transported without
bills/proper documents"" has not been tick marked in the order dated October 4, 2011. What has been specifically tick marked is ""verification of
bills/GRs"".
In these circumstances, we do not understand how the assessment/ penalty order was passed on November 4, 2011 imposing tax and penalty
of Rs. 3,88,824. The respondent, it is apparent, has proceeded with great haste and hurry in passing the order after they have come to know that
the petitioner may be approaching the court. The petitioner was not even heard. We do not agree with the contention of the respondent that this
court should not exercise writ jurisdiction in the present case in view of alternative remedy by way of appeal. The facts in the present case justify
exercise of extra ordinary power. There is violation of principal of natural justice and otherwise also the orders show complete non-application of
mind by the authorities concerned. The action and conduct of the respondents is arbitrary. In these circumstances, we have no option but to strike
down and issue a writ of certiorari and quash the order dated November 4, 2011. The goods detained will be released to the petitioner
immediately. Writ petition is disposed of. However, it will be open to the respondent-authorities to pass fresh assessment/penalty order in
accordance with law and after hearing the petitioner.