w w w . L a w y e r S e r v i c e s . i n



M/s. Sun Pharmaceutical Industries Limited, Represented by its Authorised Signatory, Nilesh Mahendra Kumar Gandhi & Another v/s The Assistant Commercial Tax Officer (Check of Accounts) & Others


    Writ Petition No. 20087 of 2006

    Decided On, 20 May 2020

    At, High Court of Andhra Pradesh

    By, THE HONOURABLE CHIEF JUSTICE MR. J.K. MAHESHWARI & THE HONOURABLE MR. JUSTICE NINALA JAYASURYA

    For the Petitioners: Bhaskar Reddy Vemireddy, Advocates. For the Respondents: R1, Government Pleader for Commercial Taxes.



Judgment Text


Oral Order: (Ninala Jayasurya, J.)

The present writ petition is filed, inter alia, seeking a writ of Mandamus to declare the action of the 1st respondent in passing the impugned confiscation order in proceedings G.C.No.21751/2006-07 dated 31.08.2006 as illegal, arbitrary, without authority of law and contrary to the provisions of the Andhra Pradesh Value Added Tax Act, 2005 [for short ‘the A.P. VAT Act’] and to set aside the same.

The averments of the affidavit filed in support of the writ petition, in brief, are as follows:-

The 1st petitioner is a Limited Company incorporated under the Companies Act and is a registered dealer in the State of Tamil Nadu under the Tamil Nadu General Sales Tax Act [for short ‘the TNGST Act’] and the Central Sales Tax Act, 1956 [for short ‘the CST Act’]. The 2nd petitioner is the shipping agent of the 1st petitioner for clearance and transportation of the Methonol [hereinafter referred to as ‘Goods’] which is under import. It is further stated that the 2nd respondent is a registered dealer under the A.P. VAT Act and under CST Act and it has imported 750 MT “Goods” from M/s. Saudi Basic Industries Corporation, Saudi Arabia, in the month of February, 2006 and the “Goods” imported from Saudi Arabia have reached Visakhapatnam Port in the month of March, 2006 and were stored in the Customs Bond House, Visakhapatnam. The 1st petitioner purchased 100 MT of the said imported “Goods” from the 2nd respondent by transfer of documents before the imported “Goods” crossed the customer frontaire after the customs clearance, and since the “Goods” are sold by way of transfer of documents before clearance from the customs house, the sale continues to be the import sale and no sales tax is leviable on the transaction since import sale is exempt under Section 5 (2) of the CST Act. In the affidavit, it is further stated that Methonol/Goods is specially imported to Visakhapatnam Port because the said Port alone has facility to store the said “Goods”. The 1st petitioner, after purchase of the “Goods” imported from the 2nd respondent, executed B-17 bond with the customs authorities, Visakhapatnam, for a sum of Rs.15,00,00,000/- on 22.04.2004 and obtained permission to move the “Goods” from Superintendent, Customs, Visakhapatnam Port to Superintendent, Central Excise, Madhuranthakan Range-II, Chengalpattu, Tamilnadu vide Excise Bond Shipping Bill No.1013/20-03-2006 and T.B.No.57/2006 dated 20.03.2006. The Superintendent of Customs (Bonds), Visakhapatnam Port has issued a certificate about the transfer of “Goods” of 15.910 MT loaded in truck No.AP3 31x 17679, duly certifying that the “Goods” are being transporting from Customs House, Visakhapatnam to Customs House, Madhuranthakam Range-II, Chengalpattu, Tamilnadu.

While so, when the “Goods” are in transit, the truck was checked and detained by the 1st respondent on 20.04.2006 at Renugunta on the ground that the “Goods” under transport are not covered by a sale bill or tax invoice or delivery note, way bill in Form X or Form 600 or the “Goods” vehicle record as prescribed under Section 48 read with Rule 55(1) of the A.P. VAT Act & Rules respectively. The 1st respondent issued seizure-cumconfiscation notice dated 21.04.2006 to show cause as to why the “Goods” under transport shall not be confiscated in exercise of powers under Section 45 (7) (b) of the A.P. VAT Act, 2005. The 1st petitioner submitted a detailed representation dated 22.04.2006 duly furnishing the details of the transaction and explained that the 1st petitioner is a 100% EOU Unit and the “Goods” which are under detention are moving under proper shipping documents from customs bonded warehouse and the same are under the custodianship of Customs authorities. However, the 1st respondent has not released the “Goods”. While so, as the 1st petitioner was incurring heavy damages, it was constrained to file Writ Petition No.9572 of 2006, challenging the action of the 1st respondent in detaining the vehicle and contemplating to confiscate the “Goods” in pursuance of the show-cause notice dated 21.04.2006 and this Court was pleased to admit the writ petition on 02.05.2006 and directed release of the detained tanker along with “Goods” on furnishing bank guarantee by the petitioner equal to the value of the “Goods”. The 1st petitioner furnished the bank guarantee for the entire value of the “Goods” and the same were released. The 1st respondent, without filing counter in the said writ petition, proceeded to pass the order dated 31.08.2006, and hence the present writ petition.

Heard the learned counsel for the petitioners and the learned Government Pleader for Commercial Taxes appearing on behalf of respondent No.1.

Learned counsel for the petitioners submits that the 1st petitioner is a registered dealer and is moving imported “Goods” to the other State and as such, there is no requirement of carrying any way bill along with the consignment and further, the “Goods” were purchased by the 1st petitioner before custom’s clearance and as the “Goods” are moving from one custom bond house to another customs bond house, the transaction of import was not completed and the “Goods” are still in the course of import from the foreign countries. He further submitted that no taxable event in the State of Andhra Pradesh either under A.P. GST Act or under the CST Act occurred and the detention of “Goods” by the 1st respondent is without jurisdiction. He also strenuously submits that the “Goods” are accompanied by the relevant documents and Section 45 (7)(b) of the A.P. VAT At, 2005, is not applicable as it is not a case of not having any documents and points out that the 1st respondent did not even ascertain from the Customs authorities about the nature of transaction and genuiness of claim. He further submits that the Customs authorities are the custodians of the “Goods” under transit for all purposes and the “Goods” are moving as property of Government of India from Visakhapatnam Port to Tamilnadu and as such, no documents, as contemplated under Rule 55(1) of the A.P. VAT Rules, 2005, need be obtained. Learned counsel also contends that the 1st respondent failed to appreciate the fact that import would be completed only after clearance by Customs authorities and till the “Goods” are cleared by the said authorities, the transaction continues to be in the course of imports and is exempted under Section 5(2) of the CST Act. Learned counsel submits that since it is a case where the 1st respondent acted without jurisdiction, the order impugned in the present writ petition is liable to be set aside.

Per contra, learned Government Pleader representing the 1st respondent submits that the petitioners have an effective alternative remedy by way of appeal to the Appellate Deputy Commissioner (CT), as such, the writ petition is not maintainable. He further submits that the 1st respondent has dealt with all the contentions of the petitioners with reference to the documents as produced and passed a reasoned order and as such the writ petition is without any merits. He also contends that the plea of the 1st petitioner that the 1st respondent has no jurisdiction and the invocation of powers under Section 45(7)(b) of A.P. VAT Act, are not attracted, deserves no consideration as the same are untenable and prays to dismiss the writ petition.

Having heard the learned counsel for both the parties, the core issue which now falls for consideration is :

Whether the invocation of Section 45(7)(b) of A.P. VAT Act, 2005, is attracted to the present case and the confiscation order as passed by the 1st respondent is valid ?

Before dealing with the contentions raised in the writ petition, it would be appropriate to deal with the contention raised by the learned Government Pleader with regard to maintainability of writ petition on the ground that the petitioners have an effective alternative remedy. The writ petition was admitted in the year 2006 and interim relief was granted, vide order dated 02.05.2006. At this juncture, the petitioners cannot be relegated to avail alternative remedy of appeal, more particularly, when the very jurisdiction of the 1st respondent is challenged in the writ petition. In such view of the matter, the contention raised by the learned Government Pleader with regard to maintainability of the writ petition deserves to be rejected.

Dealing with the principal contention advanced by the learned counsel for the petitioner, it would be appropriate to extract Sections 45(7)(a) and (b) of A.P. VAT Act, 2005, as under:

Section 45(7)(a) - Where goods are carried without paying tax, if any, payable or goods are carried without being properly accounted for in the documents referred to in clause (b) of sub-section (2), the said officer shall collect the tax payable on the goods so carried and in addition levy a penalty not exceeding two times the amount of tax payable on such goods after giving a reasonable opportunity to the person likely to be affected, against the proposed penalty;

(b) any such officer shall have power to seize and confiscate any goods where such goods are carried in the goods vehicle without any documents or covered by fictitious documents.”

As per sub-Section (b), the concerned officer shall have power to seize and confiscate any goods where such goods are carried in the goods vehicle without any documents or covered by fictitious documents.

The present case is not one where the “Goods” are being transported without any documents nor it was alleged that the documents are fictitious. As is evident from the show-cause notice dated 21.04.2006, the 1st respondent himself referred to various documents which are available at the time of checking. Thus, it is not a case where the “Goods” are carried in goods vehicle without any documents. The petitioners filed several documents along with the reply to the show cause notice. However, the 1st respondent, while rejecting several contentions raised in the explanation submitted by the 1st petitioner, passed the order impugned in the writ petition enlarging the expression ‘any documents’ in Section 45(7)(b) of A.P. VAT Act to mean any of the documents indicated in Section 45(2)(b) of A.P. VAT Act referred specifically by name (bills of sale, delivery notes etc.,) and the documents prescribed in Rule 55 of A.P. VAT Rules. Such an interpretation in the opinion of this Court, is not correct or tenable. It is settled law that the scope of legislation or intention of the legislature, when any of the provision is clear or unambiguous, cannot be enlarged even by Courts. No words can be added or subtracted or something can be read into a statutory provision, which is not there (see Nasiruddin and Ors. v. Sita Ram Agarwal [(2003) 2 SCC 577] Paragraph 37)

“37. The court's jurisdiction to interpret a statute can be invoked when the same is ambiguous. It is well known that in a given case the Court can iron out the fabric but it cannot change the texture of the fabric. It cannot enlarge the scope of legislation or intention when the language of provision is plain and unambiguous. It cannot add or subtract words to a statute or read something into it which is not there. It cannot re-write or recast legislation. It is also necessary to determine that there exists a presumption that the legislature has not used any superfluous words. It is well-settled that the real intention of the legislation must be gathered from the language used........”

Therefore, the conclusion as arrived at by the 1st respondent, who is a quasi judicial authority that the expression ‘documents’ available in Section 45(7)(b) of the Act, means any of the documents indicated in Section 45(2)(b) is not sustainable.

So far as the other contentions with reference to Section 5(2) of CST Act, are concerned, the material on record would clearly disclose that customs duties are not paid on the cargo and the same belongs to Government of India on all legal terms. The certificates dated 18.04.2006 (Ex.P.4) and dated 28.04.2006 (Ex.P.10) to the said effect clarifies the position that since the “Goods” are not cleared by customs authority on payment of customs duty, no sale is concluded and as such, there is no incidence of taxability in the State of Andhra Pradesh under A.P. VAT Act or CST Act. As seen from the above, the “Goods” are in the custody of Customs Department and are moving as property of Government of India. In such view of the matter, the contention of the petitioners that no documents as required under Rule 55(1) of A.P. VAT Rules, need be obtained and import would be completed only after clearance by the Customs Department and till then, continues to be in the course of

Please Login To View The Full Judgment!

import and as such exempt from Section 5(2) of the CST Act, deserves appreciation. As seen from the record, it is not a case where the “Goods” are carried without any documents and on the other hand the material clearly discloses that the same are under the custody of Customs Department. Therefore, Section 45(7)(b) of A.P. VAT Act, is not attracted to the facts of the present case and in view of the same the 1st respondent has no jurisdiction to entertain the matter. With regard to the other contention of the learned Government Pleader that the authority considered all the documents and arrived at conclusion, it may be trite to state that once the authority exercised by the concerned officer is without jurisdiction, the adjudication including interpretation of documents is of no avail, since the order is vitiated by lack of jurisdiction. Taking into consideration the relevant provisions vis--vis the facts of the case, we are of the opinion that Section 45(7)(b) of the A.P. VAT Act is not applicable to the facts on hand and as such, the order impugned is without jurisdiction; accordingly, the same is liable to be set aside. For the forgoing reasons, the writ petition is allowed and the impugned confiscation order in proceedings G.C.No.21751 / 2006-07, dated 31.08.2006, is set aside. As a sequel, all the pending miscellaneous applications shall stand closed. No order as to costs.
O R