ORDER
D.V. Shylendra Kumar, J.
1. Writ petition by a dealer registered under the provisions of the Karnataka Sales Tax Act, 1957 [for short ‘the Act’] who is aggrieved that certain amount i.e., a sum of Rs. 55,000/- has been extracted from the petitioner purporting to be penalty payable by the petitioner for certain infractions noticed by the Checkpost Officer but which amount has not been properly accounted for in terms of the penalty or under the provisions of the Act and is therefore seeking for refund of the amount.
2. The version of the petitioner is that the petitioner who has a unit in Daman, a Union Territory, was transporting certain goods from its factory to its place of business at Bangalore and the goods were in transit by way of stock transfer; that it had reached the destination and at the time of unloading the goods it was inspected by the Commercial Tax Officer [Mobile Squad], respondent No. 2 herein.
3. It is the further version of the petitioner that the respondents virtually threatened the driver of the vehicle that the vehicle was not carrying the supporting documents; that it did not indicate that the vehicle had passed through the entry check post in Karnataka as the vehicle and the goods had originated from out of the State of Karnataka and had to pass through this check post and therefore the Officer having suspected the genuineness of the transaction, had issued an endorsement dated 17-7-2003 and detained the vehicle and the goods worth around Rs. 9,32,911/-.
4. It is also the version of the petitioner that the petitioner could not afford detention of such quantity of perishable goods and for immediate requirement, without further dispute was pressurized to pay a sum of Rs. 50,000/- plus Rs. 5,000/- for release of the vehicle; that the amount was received by the Officer and the goods were released. The petitioner thereafter having sought for issue of an order indicating that this amount had been levied under any provision of law and that having not been acceded to and on the other hand the petitioner’s request for return of the money otherwise having been declined by the endorsement dated 8-9-2005, the present writ petition for quashing of not only the endorsement but also for issue of a mandamus to direct the respondents to refund of the amount collected purporting to be penalty payable by the petitioner.
5. Notice had been issued to the respondents. Respondents have entered appearance through learned Additional Government Advocate Smt. Niloufer Akbar who has also filed statement of objections.
6. In the statement of objections, it is, inter alia, contended that even in terms of the endorsement at Annexure-K, the petitioner had been apprised that unless the order passed by the Commercial Tax Officer levying this penalty is set aside in the manner known to law, the question of entertaining the application for refund does not arise and in support of the same, learned Government Advocate has also placed the records before the court containing the order dated 25-7-2003 passed by the 2nd respondent. While it is admitted that copy of this order was never furnished to the petitioner, the justification for this order is on the very undertaking given on behalf of the petitioner in terms of the letter dated 25-7-2003 virtually admitting that the petitioner is prepared to pay penalty and therefore at this point of time, the petitioner cannot either seek for quashing of the endorsement nor for issue of refund of the amount; that notice which had been issued initially under Section 29(2)(a) of the Act is a mistake; that the checkpost officer could have levied penalty for violation of any of the conditions noticed by the checkpost officer at that time of entry in terms of provisions of Section 28A(4) of the Act for violations of the conditions under Section 28A(2)(b) of the Act.
7. It is noticed that in the first instance, the violations are not which are detected at the entry check post but by an officer of the mobile squad at the godown of the petitioner.
8. Be that as it may, when once it is conceded that the very notice for compounding the offence and for collecting any penalty as issued under Section 29 of the Act was a mistake and could have been under any other provision of law, the amount collected cannot be retained any further.
9. However, learned Additional Government Advocate would seek leave of the court to take action in accordance with the provisions of Section 28A of the Act.
10. I notice that a penalty that can be levied in terms of Section 28A(4) of the Act is one linked to the quantification of the duty liability. In the present case, the concerned Officer having not undertaken this exercise so far and on the other hand the very provision that had been relied upon earlier being not one which is pressed into service any further and the only justification being on the purporting undertaking given by the petitioner itself, I find it rather difficult to sustain the retention of the amount.
11. If an order had already been passed and if the amount should have been adjusted against that, perhaps that could have been justified. The undertaking assuming that it had been given cannot be a substitute for a statutory provision where under alone a penalty can be levied by an authority under the Act. For levy of any penalty there should be an enabling provision and penalty should be levied strictly in accordance with the statutory provision and only after giving an opportunity to the person to be penalised. As none of these procedures have been followed, the request for retention of the amount of Rs. 55,000/- I find rather difficult to be acceded, notwithstanding the vehement submissions made on behalf of the respondents by the learned Additional Government Advocate.
12. Consequently, the notice bearing No. CTO/CR/TK[GCE]-32/2003-04 dated 8-9-2005 [copy at Annexure-K] issued by the 3rd respondent as also the order dated 25-7-2003 said to have been passed by the 2nd respondent based on which retention of the amount is justified are both quashed by issue of a writ of certiorari.
13. Writ petition is allowed. Rule made absolute.
14. Respondents are directed to refund the amount of Rs. 55,000/- to the petitioner which they have retained and are unable to support it with reference to any statutory provision, within four weeks from the date of receipt of a copy of this order.
15. However, liberty granted to the respondents to take such action as is permitted in law if the petitioner should have committed any infraction of the provisions of the Act.