WP/36432/2017 of IQBAL FERTILIZERS,CHITTOOR Vs THE DEPUTY ASST COMMISSIONER(ST)A.P,AND 2 OTHERS on 29 December 2017

HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY AND

HON’BLE SRI JUSTICE CHALLA KODANDA RAIM

WRIT PETITION No.36432 of 2017

Date:01.11.2017

Between: M/s Iqbal Fertilizers, Kalakada, Chittoor District, Reptd by its Proprietor-S.Sughubudulla

..... Petitioner

And: The Deputy Assistant Commisioner (ST), Madanapalle, Chittoor District and two others. .....RespondentsCounsel for the petitioner: Mr. G.Narendra Chetty Counsel for the respondents: Mr. Shaik Jilani Basha Special Standing Counsel for CT (AP)

The Court made the following:

ORDER: (per Hon’ble Sri Justice C.V.Nagarjuna Reddy)

This Writ Petition is filed for a Mandamus to declare the action of respondent No.1 in initiating the confiscation proceedings in respect of the pesticides, purchased by the petitioner, during their transit, and the seizure of the same as illegal. The petitioner also sought for a consequential direction to release the seized pesticides and to drop all further proceedings.

In the affidavit, filed in support of the Writ Petition, the Proprietor of the petitioner has averred that he is a registered dealer on the rolls of respondent No.2 doing the business of purchase and sale of pesticides; that for his business purpose, he purchased pesticides of different varieties from three different dealers, i.e., two dealers at Kurnool and one dealer at Nellore, all worth Rs.1,04,067.80 paise including the SGST and CGST; and that on the pesticides reaching Piler through Navatha Transport, he sent his vehicle bearing registration No.AP 21 TY 7943 along with its driver for taking delivery from the Parcel Office and transporting the same to his business premises. It is further averred that the consignment is covered by tax invoices and that, due to some emergency, arising on account of accident involving the mother of the driver of the said vehicle, instead of bringing pesticides from the Parcel office to the petitioner’s business premises, the driver was taking the said vehicle along with the consignment to Palamaner and that when the said vehicle was proceedings towards Palamaner, respondent No.1 stopped the same and seized the vehicle along with pesticides.

Following the seizure, detention notice was issued by the office of respondent No.2 on 02.10.2017, a show cause notice was issued to the petitioner on 03.10.2017 and a revised show cause notice, vide GC.No.08/2017-18, dated 16.10.2017, was issued by respondent No.2 to the petitioner, wherein he has proposed to confiscate the stock of pesticides valued at Rs.1,85,196/- in favour of the State of Andhra Pradesh invoking the power under Section-130(1) of the Andhra Pradesh Goods and Service Tax Act, 2017 (for short ‘the Act’). The petitioner was also given an option to get the pesticides released on payment of fine of Rs.83,340/-. It is further stated in the notice that the petitioner is liable to pay tax of Rs.16,668/- and penalty of Rs.16,668/-, as envisaged under Section-130(3) of the Act, if he intends to pay the said fine in lieu of confiscation.

Mr. G.Narendra Chetty, learned counsel for the petitioner, submitted that the whole action of the respondents in seizing the pesticides belonging to the petitioner and issuing the revised show cause notice is highly arbitrary and illegal. He has further submitted that the entire consignment was supported by tax invoices, which were shown by the driver of the said vehicle to the detaining authority, and that, in spite of the same, the pesticides were seized.

Mr. Shaik Jilani Basha, learned Special Standing Counsel for Commercial Taxes (Andhra Pradesh), however, submitted that as evident from the impugned revised show cause notice, the driver of the vehicle failed to produce any of the statutory records as prescribed under Section-68 read with Rule-138 of the Act.

As could be seen from the prayer in the Writ Petition, the reliefs claimed by the petitioner are in two parts, viz., (1) invalidation of the proceedings for confiscation/demand for payment of tax and penalty and (2) the release of the pesticides.

Conclusion

As regards the first part of the relief, we are of the opinion that the petitioner is not entitled for grant of the same as, it is not its pleaded case that respondent No.2 has no jurisdiction to initiate the proceedings. The question whether the consignment was supported by tax invoices or not, needs to be decided in the proceedings initiated by respondent No.2. Therefore, we are not inclined to interdict the said proceedings at this stage.

As regards the seizure of pesticides, it is stated that the same are detained from 02.10.2017. Therefore, in our opinion, the ends of justice would be met if the seized pesticides are released to the petitioner, subject to its depositing the tax component of Rs.16,668/- excluding the penalty.

Accordingly, respondent No.2 is directed to release the seized pesticides to the petitioner subject to the latter depositing a sum of Rs.16,668/- towards the tax liability, which shall be subject to the outcome of the proceedings pending before respondent No.2.

Subject to the above direction and directions, the Writ Petition is disposed of.

As a sequel to disposal of the Writ Petition, WPMP.No.45259 of 2017 stands disposed of as infructuous.

___________________________ JUSTICE C.V.NAGARJUNA REDDY

01[st] November 2017 DR

___________________________

JUSTICE CHALLA KODANDA RAM