The main legal point established in the judgment is that the power of seizure and the power to impose penalty under the Assam General Sales Tax Act are confined to cases where the goods in question are not properly accounted for, as per the provisions of Section 46(2)(b) and (c) of the Act.

Ranjan Gogoi, J.

1. The writ petitioner/who is a dealer registered under the provisions of the Assam General Sales Tax Act, 1993 (hereinafter referred to as "the Act") in course of his normal business of sale and supply of "supari" had sent a total of 320 bags of "supari" on March 7, 2003 to its consignment agents in Rajasthan by truck No. RJ-07G-4874. The aforesaid goods while in transit were seized by the Inspector of Taxes of Barpeta Road and as it would be evident from the seizure memo dated March 17, 2003 the grounds of seizure were stated as follows :

1. The dealer was carrying by truck No. RJ-07G-4874 Assam chikni "supari" which costs Rs. 60 per kg. on average whereas, he has shown the same as Assam "supari" in his Bill Nos. 20, 21, 19 dated March 17, 2003 showing the cost at Rs. 12.52 per kg. on average such goods are under-valuation.

2. The dealer claimed that the dispatch note was not compulsory as per judgment given by the honourable Gauhati High Court in which case the road challan should have been duly countersigned by the concerned Superintendent of Taxes and which was absent in this case.

3. Further the dispatch note No. 026685 of Book No. 25068 accompanied with documents was also not duly filled up as to the name of consignee, the place of destination, quantity, value of goods, number of vehicle, the goods carried by the vehicle No. RJ-07G-4874.

Which may cause (leads) evasion of Government revenue.

After seizure of the supari in transit belonging to the petitioner in the manner indicated above, on March 20, 2003 the Superintendent of Taxes, Barpeta Road after recording a finding that the petitioner "had an unaccounted stock of 320 bags of Assam chikni supari" determined an amount of Rs. 1,35,168 as tax payable in respect of the above goods along with penalty of Rs. 4,05,504. The writ petitioner having been called to pay the aforesaid two amounts as a pre-condition for release of the seized goods, the instant approach to this Court has been made wherein by an interim order this Court had stayed the operation of imposition of penalty but had required the petitioner to deposit an amount of Rs. 1,35,168 on account of tax which amount has since been paid.

2. Dr. A.K. Saraf, learned Senior Counsel appearing for the writ petitioner, in support of the challenge made has placed before the court the provisions of Section 44(5)(a), 44(3) and Section 46(2)(b) of the Act as the power to seize the goods of the petitioner as has been sought to be drawn from the aforesaid provisions of law. Pointing the aforesaid provisions of the Act, learned Senior Counsel has contended that the only provision of the Act which could have some nexus with the power of seizure and levy of penalty is to be found in Section 46(2) (b) and (c) of the Act. Reading the provisions of Section 46(2)(b) of the Act, learned counsel has contended that the power of seizure can be exercised only if the goods in question are found not properly accounted for or if the authority has reason to suspect that evasion of tax payable under the Act may take place in respect of the goods. Placing the provisions contained in Sub-clause (2)(c) of Section 46, learned counsel for the petitioner has contended that the power to impose penalty can be exercised after giving of a reasonable opportunity and only in situations where the carrier or the bailee of the goods fail to satisfy the concerned authority regarding the proper accounting of goods. According to Dr. Saraf, learned Senior Counsel for the petitioner, on a conjoint reading of Section 46(2) (b) and (c) of the Act, the power of seizure and the power to levy penalty must be understood to be confined to cases where the goods in question are not properly accounted for giving rise to a satisfaction or a reasonable suspicion in the authority that evasion of tax may take place. According to learned counsel for the petitioner, the details recorded in the seizure memo indicate the total quantity of the goods carried as we