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Electric and Furnishing Mart Vs. State of Assam and ors. - Court Judgment

LegalCrystal Citation
Subject;Sales Tax
CourtGuwahati High Court
Decided On
Case NumberCivil Rule No. 217 of 1981
Judge
AppellantElectric and Furnishing Mart
RespondentState of Assam and ors.
Appellant AdvocateT.C. Khatri, Adv.
Respondent AdvocateP.K. Barua, Sr. Government Adv.
DispositionPetition allowed
Excerpt:
- - --and the above statements are true to the best of my/our knowledge and belief. 56. the superintendent or inspector shall on being satisfied about the correctness of the statements made and particulars contained in a declaration in form xiv countersign the railway receipt, bill of lading or other document and shall seal it with his official seal. both copies of the declaration made by the dealer shall be endorsed with the number of railway receipt, bill of lading or other document, as the case may be and the date of countersignature of the aforesaid document and they shall be signed by the superintendent or inspector and sealed with his official seal. --(1) the officer-in-charge of the check post on being satisfied about the correctness of the particulars furnished in a declaration..... saikia, j. 1. m/s. electric & furnishing mart, a partnership firm of tezpur town prays for an appropriate writ quashing the direction given by the superintendent of taxes, tezpur, contained in the impugned letter containing direction as to new procedure (annexure b), accompanied by a specimen form of declaration (annexure c).2. the petitioner-firm is a registered dealer under the assam finance (sales tax) act, 1956 (hereinafter called the act), being no. tez/f/756 ; and it deals in various goods taxable under the act, importing some of those from places outside assam. respondent no. 3, the superintendent of taxes, tezpur, on 18th february, 1981, served on the petitioner the letter (annexure b) accompanied by a specimen form (annexure c) containing the direction to follow a new.....
Judgment:

Saikia, J.

1. M/s. Electric & Furnishing Mart, a partnership firm of Tezpur town prays for an appropriate writ quashing the direction given by the Superintendent of Taxes, Tezpur, contained in the impugned letter containing direction as to new procedure (annexure B), accompanied by a specimen form of declaration (annexure C).

2. The petitioner-firm is a registered dealer under the Assam Finance (Sales Tax) Act, 1956 (hereinafter called the Act), being No. TEZ/F/756 ; and it deals in various goods taxable under the Act, importing some of those from places outside Assam. Respondent No. 3, the Superintendent of Taxes, Tezpur, on 18th February, 1981, served on the petitioner the letter (annexure B) accompanied by a specimen form (annexure C) containing the direction to follow a new procedure by obtaining permit for import of finance tax goods into Assam by road transport purported to be under rules 55 and 56 of the Assam Finance (Sales Tax) Rules, 1956 (hereinafter called the Rules). The letter and the accompanying specimen form are as follows :

ToM/s. Electric & Furnishing Mart,Tezpur.This is for general information that a new procedure is going to be introduced with effect from 1st March, 1981, in respect of import of finance tax goods into Assam by road transport. The procedure to be followed for obtaining the permit will be that any dealer intending to import finance tax goods into Assam by road transport shall obtain a permit from the Superintendent of Taxes of his area in the prescribed form and shall transmit it to the carrier for production before the check post officer along with the way bills.

Specimen copy of the form may be seen in the office of the undersigned during office hours.

Sd./-Superintendent of TaxesTezpur.

(Annexure C)Specimen Copy of FormThe Assam Finance (Sales Tax) Act, 1956 (See Rules 55 and 56).

ToThe Superintendent of TaxesIn accordance with the provisions of rules 55 and 56 of the Assam Finance (Sales Tax) Rules, 1956, I/we hereby declare that the following consignment of---is to be imported into Assam and apply for a permit to transport the same by road through the check post mentioned below :--

(1) Name and address of the seller from whom purchased---

(2) Name and address of the consignee---

(3) Place of despatch---

(4) Name of check post through which the goods will be transported---

(5) Destination---

(6) Description of consignments---

(7) Quantity---

(8) Weight---

(9) Value---

(10) Consignor's invoice No. and date---

(11) Name and address of the owner of the vehicle by which the goods are carried---

(12) Remarks (if any)---

I/We hereby declare that I/we am/are registered under the Assam Finance (Sales Tax) Act, 1956, holding Registration Certificate No.---and

the above statements are true to the best of my/our knowledge and belief.

I/We also undertake to duly account for to you the disposal of the

above goods when imported and to pay tax on the sales thereof according to

the provisions of the said Act and the Rules made thereunder.

Name of the dealer in full---

Address---

Signature and status of the applicant---

Permit.

No---

I hereby permit to take delivery or to transport the consignment detailed above.

Seal

Date--- Signature of Superintendent of

Taxes,

Circle---

3. On receipt of the aforesaid letter and the specimen form, the petitioner-firm contacted respondent No. 3 who apprised it that the letter and the specimen form flow from the instructions contained in the circular dated 1st January, 1981, and 8th September, 1971, issued by respondent No. 2, the Commissioner of Taxes, Assam, Gauhati, and that the petitioner-firm shall have to comply with the new procedure. Hence this petition.

4. Mr. T. C. Khatri, the learned counsel for the petitioner, submits, inter alia, that the direction and the specimen form in annexures B and C are contrary to the letter and spirit of Sections 33 and 33A of the Act and rules 55, 56, 57, 71, 72, 73 and 74 of the Rules, that these are violative of the rights of the firm's partners guaranteed under Articles 19(1)(g), 301, 302 and 304(b) of the Constitution of India as these create unreasonable restrictions on freedom of trade, commerce and intercourse ; that a dealer shall not be in a position to fill up the form as the required particulars will not be available in advance ; that the prescribed form is redundant in view of the already prescribed declaration forms under rules 55 and 56 and under Sub-rule (4) of Rule 71, namely, forms XIV and XV, and the rules as to the check posts, and that the impugned direction and the form are beyond the authority and powers of the respondents under the Act and the Rules.

5. The learned Senior Government Advocate answers, inter alia, that the impugned direction and the specimen form have been devised to prevent evasion of tax by importing goods in the name of fictitious persons and it does not in any way increase the tax burden or impede the flow of goods, that the Commissioner of Taxes, under the Act and the Rules has ample powers to call for information, e.g., under Section 3'2 of the Act and to call for declaration under rules 71 to 73 and power to direct the officer-in-charge at a check post under Rule 74 in this regard and hence no exception can be taken to the direction and the form in annexures B and C.

6. The precise question to be determined is whether the requirements in annexures B and C, namely, obtaining of a permit in advance by filing a declaration in the prescribed form containing the particulars in connection with goods to be imported from outside Assam by road is within the powers envisaged under the Act and the Rules ; and whether those are consistent with the provisions of Article 19(1) (g), and not saved by 19(6), and Articles 301 to 304 and not saved by Article 304(b) of the Constitution of India.

7. The Assam Finance (Sales Tax) Act, 1956 (Assam Act 11 of 1956), is an Act to impose tax on sales of the specified commodities in Assam. A 'dealer' as defined in the Act means any person who sells taxable goods manufactured, made or processed by him in Assam, or brought by him into Assam from any place outside Assam for the purpose of sale in Assam. Section 33 of the Act deals with restriction of movement and Section 33A provides for erection of check posts as follows :

33. Restriction on movement.--No person shall take delivery or transport from any railway station, steamer station, airport, post office, or any other place whether of similar nature or otherwise, notified in this behalf by the State Government, any consignment of taxable goods exceeding such quantities and except in accordance with such conditions as may be prescribed. Such conditions shall be made with a view to ensure that there is no evasion of the tax imposed by this Act.

33A. Erection of check post.--(1) The State Government may, by notification, set up and erect, in such manner as may be prescribed, check posts and barriers at any place in the State with a view to prevent the evasion of tax payable under this Act.

(2) Every person transporting goods shall, at any check post or barrier referred to in Sub-section (1) and before crossing such check post or barrier, file before the officer-in-charge of the check post or barrier, a correct and complete declaration of the goods in such form and in such manner as may be prescribed.

(3) The officer-in-charge of the check post or barrier for the purpose of satisfying himself that the provisions of Sub-section (2) are not being contravened, and subject to such restrictions as may be prescribed, intercept, detain and search any vehicle or boat which may be suspected of being used for contravening such provisions.

Section 39 of the Act empowers the State Government to make rules for carrying out the purposes of the Act. Rules 55 and 56 prescribe the procedure for receiving goods from outside Assam by filing road declaration form XIV in the following terms:

55. A registered dealer shall, before taking delivery of or transporting from any place specified in Rule 54 any consignment of taxable goods exceeding the quantities specified in the said rule and despatched from any place outside Assam, produce for countersignature before the Superintendent or Inspector the railway receipt, bill of lading or other document required for the purpose of obtaining delivery of such consignment from the carrier. He shall simultaneously make over to the Superintendent a written declaration in form XIV in duplicate and duly signed.

56. The Superintendent or Inspector shall on being satisfied about the correctness of the statements made and particulars contained in a declaration in form XIV countersign the railway receipt, bill of lading or other document and shall seal it with his official seal. Both copies of the declaration made by the dealer shall be endorsed with the number of railway receipt, bill of lading or other document, as the case may be and the date of countersignature of the aforesaid document and they shall be signed by the Superintendent or Inspector and sealed with his official seal. One copy of the declaration shall thereupon be returned to the dealer and the other copy retained by the Superintendent or Inspector.

Rules 71, 72 and 73 prescribe the procedure to be observed at the check post as under:

71. Check post.--(1) Where the State Government decide to set up a check post under Section 33A at any place the location of such check post shall be notified in the official Gazette. Where a check post is set up on a thoroughfare or road, barriers may be erected across the thoroughfare or road in the form of contrivance to enable traffic being intercepted, detained and searched.

(2) Any officer appointed under the provisions of the Act and for the time being on duty at a check post shall be deemed for the purposes of the said Section 33A to be the officer-in-charge of such check post and all the provisions of the Act and the Rules shall apply accordingly.

Explanation.--The following officers shall be deemed to be on duty at a check post for the purpose of Sub-rule (2) :--

(1) The Deputy Commissioner.

(2) Any other officer appointed to assist the Commissioner and exercising jurisdiction over the area where the check post is located.

(3) Any officer appointed in any capacity to assist the Commissioner and posted in such capacity to the check post shall at any time when he is physically present at the check post be deemed for purposes of these rules to be officer-in-charge of the check post.

(4) No person shall transport taxable goods across or beyond a check post except after filing a declaration in form XV in triplicate before the officer-in-charge of the check post.

72. Inspection and search of vehicles or boats.--(1) When in the opinion of the officer-in-charge of the check post a search of a vehicle or a boat is necessary, such search shall, as far as practicable, be conducted with due regard to the convenience of the person transporting the goods and without causing avoidable dislocation.

(2) The officer-in-charge of the check post or barrier may, for satisfying himself that the provisions of Sub-rule (3) of Rule 71 are not being contravened, require the person for the time being in-charge of such vehicle or boat to stop and such person shall forthwith comply with such requirement and keep the vehicle or boat stationary for as long as is required by such officer.

(3) The said officer may thereupon enter and search such vehicle or boat and inspect all goods and documents concerning goods or vehicle or boat. In carrying out such search or inspection the said officer may take the assistance of any other officer appointed under Sub-section (1) of Section 8 of the Assam Sales Tax Act, 1947, or any other staff on duty at such check post. The person for the time being in-charge of the vehicle or boat shall forthwith furnish such particulars of the taxable goods and vehicle or boat as may be required and shall render all possible assistance to the said officer in making the search or inspection.

73. Verification of declaration.--(1) The officer-in-charge of the check post on being satisfied about the correctness of the particulars furnished in a declaration under Sub-rule (3) of Rule 71, and, as the case may be of particulars furnished in compliance with any requirement made under Sub-rule (3) of Rule 72, shall countersign all the copies of the declaration and seal them with his official seal. Two copies of the declaration shall be returned to the person filing it after endorsing on one of these particulars of the officer to whom it shall be surrendered. If there is no such officer to whom it can be surrendered, the officer-in-charge of the check post shall retain two copies of such declaration.

(2) The driver of the vehicle or boat carrying the taxable goods or the person in-charge of the goods shall produce the countersigned declaration for inspection and checking at any other check post which may fall on the route or any other place within the State where the production of the declaration is required under the provisions of the Act and shall surrender one copy thereof to the officer to whom he has been directed under Sub-rule (1).

74. Power of Commissioner.--The Commissioner may by general or specific order in writing not inconsistent with the provisions of the Act and the Rules, direct the officer-in-charge of a check post subject to such conditions as he may deem fit to impose, to do or refrain from doing something which the latter has the authority to do, whereupon such officer-in-charge shall carry out the order.

8. Mr. Khatri does not challenge the vires of the aforesaid sections and the rules and has no complaint against the existing forms and procedure. His grievance is confined to the new procedure and the specimen form.

9. Section 33 provides for restriction of movement and the conditions prescribed therein have been made with a view to ensure that there is no evasion of tax imposed by this Act. Section 33A also enables the State Government to set up and erect check posts and barriers at any place in the State and to require every person importing goods before crossing such check post or barrier to file before the officer-in-charge of the check post or barrier a correct and complete declaration in the prescribed form and also empowers the officer-in-charge of the check post or barrier for the purpose of satisfying him about the compliance of the rules to intercept, detain and search any vehicle or boat which may be suspected of being used for contravening such provision. Rule 55 requires the filing of a written declaration, form XIV. Rule 56 requires of the officer being satisfied about the correctness to countersign the declaration in duplicate and return one copy to the dealer and retain one with him.

10. The Act is a fiscal measure and the rules framed and directions issued thereunder have also to be treated as such. Articles 301 and 304 in Part XIII ensure freedom of trade, commerce and intercourse and circumscribe restrictions that may be put on free movement and exchange of goods throughout the territory of India which, as it was pointed out in Atiabari Tea Company Ltd. v. State of Assam AIR 1961 SC 232, is essential in the interest of economy of the nation and for sustaining and improving living standards of the country. The provision contained in Article 301 guaranteeing the freedom of trade, commerce and intercourse is not a declaration of a mere platitude, or the expression of a pious hope of a declaratory character, it is also not a mere statement of a directive principle of State policy; it embodies and enshrines a principle of paramount importance that the economic unity of the country will provide the main sustaining force for the stability and progress of the political and cultural unity of the country.

11. Evasion of tax particularly sales tax, is no doubt a problem which the taxing authorities have to curb by effective measures. Though the power of levying taxes and adopting measures to prevent evasion of tax are essential for the very existence of the Government, their exercise must inevitably be controlled by the constitutional provisions made in that behalf. It cannot be said that the power of taxation per se is outside the purview of the constitutional limitation. Article 301 applies not only to inter-State trade, commerce and intercourse, but also to intra-State trade, commerce and intercourse and, read in its proper context, and subject to the limitations prescribed by the other relevant articles in part XIII. Article 301 must be regarded as imposing a constitutional limitation on the legislative power of the Parliament and the legislatures of the States and restrictions, freedom from which is guaranteed by Article 301, would be such restrictions as directly and immediately restrict or impede the free flow or movement of trade ; taxes may and do amount to restrictions, but it is only such taxes as directly and immediately restrict trade that would fall within the purview of Article 301. In determining the limits of the width and amplitude of the freedom guaranteed by Article 301 a rational and workable test to apply would be : does the impugned restriction operate directly or immediately on trade or its movement In the instant case, the problem is not of impeding free flow of goods by imposing taxes, but one of additional requirement to obtain permit by filing declaration in advance of the goods passing through the check posts, in other words, requiring the intending importers of finance taxes goods from outside Assam to file in advance a declaration giving particulars of the intended imports and obtain a permit. There is no doubt that as a fiscal measure the finance tax authorities have the power to set up check posts for prevention of evasion. It was ruled in Commissioner of Commercial Taxes v. Ramkishan Shrikishan Jhaver [1967] 20 STC 453 (SC) that while making the law under any entry in the schedule to the Constitution it is competent to the legislature to make all such incidental and ancillary provisions as may be necessary to effectuate the law; particularly, in the case of a taxing statute, it is open to the legislature to enact provisions which would check evasion of tax. It is under this power to check evasion that provisions for check posts and search and seizure are made in many taxing statutes. The legislature has, therefore, power to provide for search and seizure in connection with taxation laws in order that evasion may be checked. The provisions of Section 41(2) and (3) of the Madras General Sales Tax Act, 1959, were held to be reasonable restrictions on the fundamental right to hold property and to carry on trade under Article 19(1)(f) and (g) of the Constitution and to be protected by Clauses (5) and (6) of Article 19. In Dunlop India Limited v. State of Punjab [1972] 30 STC 597 the provisions of Sub-section (8) of Section 14-B of the Punjab General Sales Tax Act, giving the sales tax authorities the power of seizure of goods carried in a goods vehicle were held ultra vires the powers of the State Legislature and any action taken thereunder would be null and void, being without authority. This was affirmed in State of Punjab v. Dunlop India Limited [1974] 33 STC 168.

12. The above principle was reiterated by their Lordships of the Supreme Court in Check post Officer, Coimbatore v. K. P. Abdulla and Bros. [1971] 27 STC 1 (SC), in the following language : 'Entry 54 of List II of the Seventh Schedule to the Constitution authorises the State Legislature to legislate in respect of taxes on the sale or purchase of goods. A legislative entry does not merely enunciate powers ; it specifies a filed of legislation and the widest import and significance should be attached to it. Power to legislate on a specified topic includes power to legislate in respect of matters which may fairly and reasonably be said to be comprehended therein.' A taxing entry, therefore, confers powers upon the legislature to legislate on matters ancillary or incidental including provisions for preventing evasion of tax. But the power to confiscate goods carried in a vehicle cannot be said to be so comprehended.

13. In our present case no question of confiscation is involved. The question is only of requiring the registered dealers to file a declaration in advance to obtain a permit. The power of search and seizure has already been there and has not been challenged in this petition.

14. While devising measures for the purpose of evasion of tax(sic) the State Legislature, however, cannot make laws, and the State Government cannot adopt measures, which will impede the free flow of trade, commerce and intercourse throughout the territory of India. Such a law or measure will be struck down.

15. Rule 31-B of the Bihar Sales Tax Rules, 1959, promulgated under Section 46(1) of the Sales Tax Act, 1959, provided:

No person shall tender at any railway station, steamer station, airport, post office or any other place, whether of similar nature or otherwise, notified under Section 42, any consignment of such goods, exceeding such quantity, as may be specified in the notification, for transport to any place outside the State of Bihar, unless such person has obtained a despatch permit in form XXVIII-D from the appropriate authority referred to in the explanation to Rule 31 and no person shall accept such tender unless the said permit is surrendered to him.

The State Government published a notification enforcing the new procedure. It was held by the Supreme Court in Hansraj Bagrecha v. State of Bihar [1971] 27 STC 4 (SC) that Rule 31B and the notification issued must be struck down. It has been observed that the power of the State Legislature is restricted to legislate in respect of intra-State sale and purchase and to matters ancillary or incidental thereto : it has no power to legislate for levy of tax on sales and purchases in the course of inter-State transactions. The power conferred by Section 42 authorising the imposition of restriction on transport or movement of goods might therefore only be exercised in respect of levy, collection and recovery of tax on transactions of intra-State sale and/or purchase. When Rule 31B seeks to prohibit transport of goods to any place outside the State of Bihar unless a certificate is obtained from the appropriate authority, it seeks to prohibit transport of goods pursuant to transactions which may not even be of the nature of sale or purchase transactions; in any case it restricts transport pursuant to transactions which are in the course of inter-State trade and commerce. The operation of the rule is not restricted only to transactions in the course of intra-State trade and commerce. On that account it was held to be ultra vires the State Government; and for the same reasons the notification also was held to be unauthorised.

16. In our instant case the direction in annexures B and C relates to movement of finance tax goods inside the State, but it requires the dealers to obtain a permit by filing a declaration of the intended imports from outside Assam. It may be necessary therefore to see whether this requirement results in impediment to the movement of goods from the consignors outside Assam to the registered dealers inside Assam.

17. Section 33A was inserted by Assam Act 14 of 1966 with effect from 26th April, 1966. The rules were framed in 1956 and form No. XIV was prescribed under rules 55 and 56. Form XIV is reproduced below :

FORM XIVThe Assam Finance (Sales Tax) Act, 1956(See rules 55 and 56)

ToThe Superintendent of Taxes,---In accordance with the provisions of rules 55 and 56 of the Assam Finance (Sales Tax) Rules, 1956, I/we hereby declare that the following consignment of --- is being imported into Assam, by rail/air/steamer and apply for a permit to transport the same by road/by boat from the railway station/steamer station/post office/air port mentioned below:--

(1) Name and address of the seller from whom purchased---

(2) Name and address of the consignee---

(3) Place of despatch---

(4) Name of railway station/steamer station/post office/air port from where delivery will be taken---

(5) Destination---

(6) Description of consignment---

(7) Quantity---

(8) Weight---

(9) Value---

(10) Consignor's invoice No. and date---

(11) Railway receipt or bill of lading or air note No.---

(12) Remarks (if any)---

I/We hereby declare that I/we am/are registered under the Assam Finance (Sales Tax) Act, 1956, holding Registration Certificate. . . . and the above statements are true to the best of my/our knowledge and belief.

I/We also undertake to duly account for to you the disposal of the above goods when imported and to pay tax on the sales thereof according to the provisions of the said Act and the Rules made thereunder.

Name of the dealer in full---

Address---

Signature and status of the applicant---

Permit.

No.---

I hereby permit to take delivery or to transport the consignment detailed above.

Signature of Superintendent of Taxes, Seal.

Date--- Circle---

The Rules were amended in 1971 by the Assam Finance (Sales Tax) (Amendment) Rules, 1971. In this amendment after form XIV another form XV was added in accordance with the provisions of Rule 71. Form XV is reproduced below:

'FORM XV

Declaration of transport of certain goods under the Assam Finance (Sales Tax) Rules, 1956.

(to be prepared in triplicate)

(See Rule 71)

ToThe Superintendent of Taxes.---In accordance with the provisions of Rule 71 of the Assam Finance (Sales Tax) Rules, 1956, I/we hereby declare that the consignment of goods, details of which are furnished below, is transported to/from the State of Assam by me/us on my/our behalf by road/boat.

1. (a) Name and address of the person consigning the goods---

(b) If he is a dealer, Registration Certificate No. under the Assam

Finance (Sales Tax) Act, 1956,---

2. Full address of the place--

(a) From which they are consigned---

(b) To which they are consigned---

3. (a) Description of goods---

(b) Quantity or weight---

(c) Value of goods---

4. (a) Name and address of the owner of vehicle or boat by which the goods are consigned---

(b) Registration No. of the vehicle or boat---

5. (a) If the consignor is transporting goods in pursuance of a sale, for the purpose of delivery to the buyer, the name and address of the buyer---

(b) The buyer's Registration Certificate No. under the Assam Finance (Sales Tax) Act, 1956, if he is a dealer---

(c) Bill No. relating to the sale with date---

6. (a) If the consignor is transporting goods after purchasing them, the name and address of the seller'---

(b) Bill No. relating to the purchase with date---

7. If the consignor is transporting the goods from one of his shops or godowns to an agent for sale, or from one of his shops or godowns to another for the purpose of storage or sale, the name and address of the agent or the address of the shop or godowns to which the transport is made---

I/We declare that the particulars furnished are correct and true to the best of my/our knowledge and belief. I/We undertake to surrender one copy of his declaration to the authority or officer to whom I/we, have been directed to surrender it.

Signature of the applicant---Date---Status in relation to dealer---Address---

Checked. A copy of this declaration shall be surrendered to the

Superintendent of Taxes---

Date--- Signature of the Officer-in-charge.

Seal--- of ---Check Post.

Note:--Copy of the declaration should accompany the goods for production on demand.

Under Rule 71, Sub-rule (4), no person shall transport the taxable goods across or beyond the check post except after filing a declaration in form XV in triplicate before the officer-in-charge of the check post.

18. Thus under the existing provision of the rules the particulars in the prescribed forms XIV and XV--the former being under rules 55 and 56 and the latter under rule 71 are statutory requirements. The learned counsel for the petitioner has no complaint against these forms and their requirements.

19. The form sought to be introduced in annexure C with the accompanying direction annexure B is purported to be under rules 55 and 56 and as such ex facie is an additional requirement under those rules. The learned Senior Government Advocate states that it was by mistake that reference was made to the above two rules, and that annexure C is not meant to be a substitute for form XIV. On a comparison of the two forms, namely, the new specimen form and form XIV, we find that both are under rules 55 and 56, and while the former is to be given by the importing dealer to obtain the permit to take delivery of goods at the destination, the specimen form is required to be filled up and submitted by the importing dealer to obtain the permit, before the goods are imported. Form XV is to be given by the consignor through his carrier. Both XIV and the specimen form contain 12 columns. Columns 1, 2 and 3 are same in both. Column 4 differs to the extent that XIV requires the particulars of the destination station while the specimen requires the name of the check post through which the goods will be transported. Columns 5 to 10 are again identical. Column 11 of XIV requires railway receipt or bill of lading or air note No., while of the specimen requires the name and address of the owner of the vehicle by which the goods are carried. The declaration, undertaking as well as the permit portions are exactly identical. Form XV requires particulars of the consignor and the consignment. Column 4 thereof requires the name and address of the owner of vehicle or boat by which the goods are consigned. Column 5 requires the name of the buyer, if the consignor is transporting goods in pursuance of a sale for the purpose of delivery to the buyer. The buyer's registration certificate No. under the Assam Finance (Sales Tax) Act, 1956, if he is a dealer, has to be stated. Under Clause 6, if the consignor is transporting goods after purchasing them, the name and address of the seller and other particulars are to be given.

20. Thus some particulars which are presently obtained from form No. XV are sought to be obtained from the specimen form in advance of importation of the goods. For example the declaration that the following consignment of goods is being imported into Assam and in column No. 4 the name of check post through which the goods will be transported, description of the consignments, etc.

21. Mr. Khatri points out that these informations are already obtainable in form XV prescribed under Rule 71, but impossible to obtain from the specimen form unless flow of goods is obstructed till they are obtained by the consignee from the consignor and the permit transmitted to him and that the Superintendent of Taxes has no authority to cause this obstruction by prescribing a new form over and above forms XIV and XV already prescribed under the Rules. The learned Senior Government Advocate stated that the specimen form is not a substitute for form XIV and that the form in annexure C is also not in conformity with the instructions issued by the Commissioner under Memo No. CTS 73/71/15 dated 1st January, 1981, which was followed by Memo. No. CST 73/71/55 dated 20th February, 1981, the latter purporting to facilitate uninterrupted flow of traffic. The memo dated 20th February, 1981, prescribes a form in triplicate, which the learned Government Advocate submits, may be the form to be introduced by the Commissioner. That form, however, is not before us in this petition. The modern methods of trade, commerce and communication may not be as slow and sluggish as submitted by the counsel, so that delay or obstruction may or may not result from the new procedure.

22. Assuming, but not deciding, that the new direction and specimen form may result in delaying the movement of goods as submitted, the question arises as to whether this will amount to violation of Article 19(1)(g) to practice any profession, or to carry on any occupation, trade or business and not saved by Article 19(6) or will amount to unreasonable restrictions violative of Article 301 and not saved by Article 304(b) ?

23. If the Commissioner has power for the purposes of the Act to call for information under Section 32 and under Sub-section (3) thereof to require any person whom he has reason to believe to have obtained taxable goods from outside the State to furnish him with a statement of the names of persons with their addresses from whom he has obtained the goods and of the names and prices of the goods obtained, and if while calling for such a statement movement of goods are temporarily hampered, will it ipso facto amount to unreasonable restriction If it is regarded as such how will the Commissioner be permitted to exercise the power In United Provinces v. Mt. Atiqa Begum AIR 1941 FC 16 it has been held that the general descriptive words in item 21 of the Seventh Schedule of List II of the Government of India Act included 'the collection of rents', and if a Provincial Legislature can legislate with respect to the collection of rents, it must also have power to legislate with respect to any limitation on the power of a landlord to collect rents as well as to their collection. Applying the same principle, if the Commissioner has the power to call for the information, he should, perhaps, also have the power to decide when and how the information is to be called for and it will necessarily put some limitation on those from whom those informations are called for, and it should, perhaps, be for them to devise as to how best these can be supplied with least dislocation of their trade. If on the other hand the Commissioner says that you cannot import at all until you obtain the permit by filing the declaration in advance, then the consequence may be different and the ratio of Hansraj Bagrecha's case [1971] 27 STC 4 (SC) may apply. It will always depend on facts and circumstances of the case having regard to the public benefit expected to be derived and the nature and extent of its effects on freedom to carry on trade. If the effects of any measure purported to be taken, transcends the State's boundary and impedes inter-State trade it must, of course, be struck down. Even if the measures are with reference to goods flowing from another State but subjected only after those goods enter the legislating State, and so long it is not unreasonable, no objection can be taken to a such measure. In G. K. Krishnan v. State of Tamil Nadu AIR 1975 SC 583 it was ruled that the collection of toll or tax for the use of roads, bridges or aerodromes, etc., do not operate as barriers or hindrance to trade. Even for a tax to become a prohibited tax, it has to be a direct tax, the effect of which is to hinder the movement part of the trade. If the tax is compensatory or regulatory, it cannot operate as a restriction on the freedom of trade or commerce. Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan AIR 1962 SC 1406 and Khyerbari Tea Co. Ltd. v. State of Assam AIR 1964 SC 925 followed. In Sat Pal and Co. v. Lt. Governor, Delhi AIR 1979 SC 1550, the imposition of a special duty on import of country liquor into Delhi by the Punjab Excise Act (1 of 1914) as amended by the Punjab Excise (Delhi Amendment) Ordinance, 1979, was held not to constitute unreasonable restriction on trade or business and so not violative of Articles 19(1)(g) and 301. Of course this was a case of intoxicating liquor. In State of Karnataka v. Hansa Corporation AIR 1981 SC 463, the Karnataka Tax on Entry of Goods into Local Areas for Consumption, Use or Sale therein Act (27 of 1979) which levied on scheduled goods either manufactured or produced within Karnataka State or imported from outside on their entry in a local area was held to have satisfied the test of reasonableness under Article 304(a) and not to be violative of Article 19(1)(g) for the little differential treatment it meant between the locally produced and imported goods. In New Bihar Biri Leaves Co. v. State of Bihar AIR 1981 SC 679, where Clause 13 of form M under Rule 9(10) of the Bihar Kendu Leaves (Control of Trade) Rules, 1972, framed under Section 20 of the Bihar Kendu Leaves (Control of Trade) Act (5 of 1974) requires that the purchaser has to pay minimum royalty of 75 per cent before he utilizes the leaves even if the prices collected by him ultimately falls short of this amount, it was held that it satisfied the test of reasonableness under first part of Article 19(6) of the Constitution of India and hence valid. Their Lordships observed that Article 19(6) falls into two parts and the two parts of the clause are intended to be distinct and separate. Further the words 'reasonable restriction' which find pivotal mention in the first part, have not been repeated in the second part, which omission makes it clear that a law covered by Sub-clause (ii) is not required to satisfy the test of reasonableness under the first part of the clause and no objection to the validity of such a law is tenable on the ground that it infringes the right guaranteed under Article 19(1)(g). Sub-clause (ii) is thus in the nature of an exception to the main substantive provision in Sub-clause (i) of the article.

24. It would be necessary to test the validity of the impugned annexures B and C, both the direction for obtaining permit and the specimen form, in the light of the above principles. However, as stated by the learned Senior Government Advocate, annexure C is not under rules 55 and 56, as it purports to be, and it cannot be a substitute for form XIV which is prescribed under rules 55 and 56. It is also not a substitute for form No. XV prescribed under Rule 71. It also admittedly does not conform to the instructions issued by the Commissioner. The direction in annexure B with the form in annexure C to the petition, therefore, is held to be ultra vires the powers of the Superintendent of Taxes and the Commissioner and are hereby quashed. The Superintendent is forthwith restrained from giving effect to the annexures. As the instructions in Memo No. CTS-73/71/55 dated 20th February, 1981, stated to have been issued by the Commissioner, have not been impugned in this petition, this Court is not invited to pass any opinion on those, and I leave it open to the petitioner to challenge those, if he is so advised, in a separate petition. The quashing of the direction in annexure B will not by itself prejudice the instructions of the Commissioner.

25. In the result, this petition is allowed. The Rule is made absolute, but in the circumstances of the case without costs.

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