M/s Hari Cargo Carrier vs State of Uttarakhand

K.M. Joseph, C.J. (Oral)—Appellant is the writ petitioner. Two writ petitions were filed by the appellant/writ petitioner. Mr. S.K. Posti, learned counsel appearing for the appellant/writ petitioner does not dispute that the prayers in both the writ petitions are the same. The prayers made in Writ Petition (M/S) No. 1967 of 2015 are as follows:

"i) issue a suitable writ, order or direction in the nature of Certiorari quashing the seizer order dated 30/07/2015 passed by assistant commissioner mobile squad Vikash Nagar Dehradun and confirm by Joint Commissioner (Administration) Garhwal Region Haridwar, Dated 01/08/2015.

(ii) Issue a suitable writ, order or direction in the nature of Mandamus commanding the respondents to released the seized goods without security.

(iii) Issue a suitable writ, order or direction in the nature of Mandamus commanding the respondents not to insist for import declaration form in case of purchase of goods for personal use."

According to the appellant/writ petitioner, it is a carrier. It was entrusted with certain goods to be carried from Delhi. According to the appellant/writ petitioner, the goods are all subjected to tax under the CST. While the goods were being transported, the vehicles were detained by the authority under the Uttarakhand Value Added Tax Act, 2005 (hereinafter referred to as the "Act"). A show-cause was issued and the appellant/writ petitioner submitted its reply; but the appellant/writ petitioner has been asked to deposit the security amount for release of the goods. An appeal was filed before the Deputy Commissioner (Enforcement) and, thereafter, alleging that the appellate Tribunal is not working, the writ petitions were filed. The learned Single Judge has disposed of the matter by relegating the appellant/writ petitioner to approach the Tribunal. It is against the same that the appeal is lodged. A single appeal is filed challenging the order passed in both the writ petitions by paying separate court fee.

We have heard Mr. S.K. Posti, learned counsel appearing for the appellant/writ petitioner and Mr. H.M. Bhatia, learned Brief Holder appearing for the State.

Learned counsel for the appellant/writ petitioner would reiterate the facts. He would submit that the only reason given in the show-cause was that Form 16, contemplated under Section 48 of the Act read with Rule 30 of the Uttarakhand VAT Rules, 2005 (hereinafter referred to as the "Rules"), was not accompanying the goods. According to the learned counsel for the appellant/writ petitioner, a perusal of Section 48 of the Act, along with Rule 30 of the Rules, would show that it is not applicable in the case of the appellant/writ petitioner. According to the appellant/writ petitioner, the matter is covered by the proviso to Section 48 and it is optional for a person, who is importing goods otherwise than in connection with business, to apply for the certificate. More importantly, it is submitted that sub-rule (2) of Rule 30 only contemplates a registered dealer, who can apply for a certificate. Learned counsel also refers to sub-rule (4) of Rule 30, which provides as follows:

"(4) If the Assessing Authority is satisfied that the demand of the dealer for blank declaration form is genuine and reasonable, he may issue such number of forms as he deems fit. No declaration form shall be issued unless the dealer has rendered an account of all such forms obtained earlier."

Learned counsel for the appellant/writ petitioner would submit that the appellant/writ petitioner is not a registered dealer, as he is not doing any intra-State sale in the State of Uttarakhand.

The learned Brief Holder appearing for the State would, in fact, point out that, when the vehicle was intercepted, it was not accompanied by the sale bills. The learned counsel for the appellant/writ petitioner, in fact, sought to dispute that contention by pointing out that there is no such ground taken.

Prima facie, we would think that there is reference to that fact under Column 3, which relates, inter alia, to non-availability of bills. We say prima facie, as we must not be treated as having pronounced on the issue having regard to the course we intend to adopt in this case. When there is a disputed question of fact, ordinarily, the relegating of a party to an alternate forum is not to be faulted. In such circumstances, particularly when a learned Single Judge has exercised his discretion to relegate a party to alternate forum, the appellate court will be slow to interfere. In this case, another important development is not to be overlooked. Apart from the order passed by the learned Single Judge, this court also had passed orders, the final outcome of which was that the appellate Tribunal has become fully functional. Therefore, we would see no reason why we should interfere with the judgment passed by the learned Single Judge.

Consequently, the appeal is dismissed. We make it very clear that we are leaving open all the contentions of the appellant and the Tribunal will proceed to decide the matter on merits untrammeled by anything contained in this judgment otherwise.