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Judgment
M. Katju, J.—Heard Sri Bharatji Agarwal, learned Senior Advocate and Sri Kunwar Saxena for the petitioner and Sri R.D. Gupta for the State Government.
The petitioner has prayed for a writ of certiorari to quash the impugned showcause notice dated 952000 Annexure 10 to the writ petition and for a mandamus for releasing the goods detained on 752000.
Gaunter and rejoinder affidavits have been filed and we have perused the same.
Sri Bharatji Agarwal, learned Counsel for the petitioner submitted that a circular has been issued by the State Government dated 2451994 which has been reiterated by circular dated 2591998 vide Annexure 1 1 to the writ petition. That circular states:
Clause 2 (kha) of the aforesaid circular states that once a vehicle has crossed the entry check post it will not be checked by the mobile squad. In paragraphs 6 and 7 of the writ petition it has been alleged that the goods in question had crossed the entry check post Drummondganj on 652000 at 9.30 p.m. where they have been checked by the Trade Tax Officer of the check post whose statement is Annexure C.A. 1 to the counteraffidavit. Hence Sri Bharatji Agarwal has contended that the detention of the goods by the Trade Tax Officer, mobile Squad at Varanasi was in violation of the above circular.
In reply to this argument learned Counsel for the Department has invited our attention to Rule 84 (1) of the U.P. Trade Tax Rules, 1948 which states as follows:
"At every check post or barrier or at any other place, when so required by the officerin charge of the check post or by an officer empowered under Section 13 or 13A or under Rule 3A or 4, the owner, driver or any other personincharge of the vehicle or vessel, as the case may be, shall stop the vehicle or vessel and keep it stationary for as long as may be required by such officer. He shall also allow such officer to examine the contents of the vehicle or vessel and to inspect all documents and records relating to the goods carried, which may be in his possession or in the possession of any other person in the vehicle or vessel."
The argument of the learned Counsel for the Department is that a circular cannot override the Rules made under the Act. However, Sri Bharatji Agarwal invited our attention to the decision of the Supreme Court in Commissioner of Sales Tax v. M/s Indra Industries, JT 2000(2) SC 441. In paragraph 3 of this judgment it has been stated as follows:
"The said in effect till date. It has not been shown that it has been withdrawn. It is, therefore, very remarkable that it should be contended on behalf of the very Sales lax Department whose Commissioner issued that circular that it is erroneous. It is very remarkable that the Sales Tax authorities should instruct their Assistant Commissioners who deal with tax assessment in a manner which is according to them, contrary to the law."
Sri Bharatji Agarwal has also invited the attention of this Court to the Supreme Court decision in Ramana Dayaram Shetty v. The International Airport Authority, AIR 1979 SC1628, quoting Justice Frankfurter of the U.S. Supreme Court who observed:
"Any executive agency must be rigorously held to the standards by which it professes its action to be judged.....Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed..... This judicially evolved Rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with the sword."
Sri Bharatji Agarwal has also invited our attention to the Supreme Court decision in Ranaday Micronutrients v. Collector of Central Excise, 1996 (10) SCC 387. In paragraph 16 of the said decision it has been observed:
"The whole objective of such circulars is to adopt a uniform practice and to inform the trade as to how a particular product will be treated for the purposes of excise duty. It does not lie in the mouth of the Revenue to repudiate a circular issued by the Board on the basis that it is inconsistent with a statutory provision. Consistently and discipline are of far greater importance than the winning or losing of Court proceedings."
On the other hand learned Counsel for the Department has relied on the decision of M/s Harbans Lal Malhotra and Sons v. State of U.P,, 1987UPTC694.
In our opinion the legal position cannot be disputed that if the State Government issues a circular it is bound by its own circular and it is not open to it to contend that its own circular is not binding on it.
However, there is a factual controversy in the present case as stated in paragraph 3(i) and 3(ii) of the counter affidavit. Hence while we lay down the law that a circular is binding on the departmental authority and they cannot take the plea that it is not binding on them, the factual controversy whether the truck in question had passed the entry check post Drummondganj with requisite papers prior to detention by Trade Tax Officer, Mobile Squad should be resolved by the Additional Commissioner, Trade Tax (Administration), Head Quarter, Lucknow within a week of production of a certified copy of this order in accordance with law. Consequential order shall be passed immediately thereafter.
The petition is disposed of accordingly. A certified copy of this judgment shall be given to the parties on payment of usual charges within 24 hours.