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The Anantapur District Co-operative Marketing Society Ltd. and ors. Vs. the Special Assistant Commercial Tax Officer (Evasions) and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAndhra Pradesh High Court
Decided On
Case Number W.P. Nos. 4815 and 5101 of 1968
Judge
Reported in[1972]29STC649(AP)
AppellantThe Anantapur District Co-operative Marketing Society Ltd. and ors.
RespondentThe Special Assistant Commercial Tax Officer (Evasions) and ors.
Appellant Advocate T. Anantha Babu, Adv.
Respondent Advocate P. Venkatarama Reddy, Government Pleader
Disposition Petition allowed
Excerpt:
.....the power to seize and confiscate goods which are not covered by a way bill containing the prescribed particulars is comprehended by this entry. in other words, the question is whether the power to make laws for the imposition of taxes on the sale or purchase of goods carries with it the power to seize them and levy a penalty and also to confiscate the same on failure to pay the penalty within the prescribed time if they are not covered by a way bill containing the required particulars......sub-sections (3) and (4) of section 29 of the a.p.g.s.t. act. the facts of that case, viz., check post officer v. k.p. abdulla and bros [1971] 27 s.t.c. 1(s.c.) are as follows : a motor lorry proceeding along a highway from coimbatore in the state of madras towards the border of the kerala state was found, on a search by the check post officer, to be carrying certain goods which were not covered by a bill of sale or delivery note. suspecting evasion of sales tax, the check post officer by his order dated 2nd march, 1965, confiscated the goods and gave an option to the owners to pay rs. 1,000 and penalty in lieu of confiscation. the validity of section 42(3) of the madras general sales tax act, 1959, in pursuance of which the check post officer purported to seize and confiscate the goods.....
Judgment:

Venkateswara Rao, J.

1. The constitutionality of Section 29 of the Andhra Pradesh General Sales Tax Act, which will hereinafter be referred to as the 'Act' to the extent it purports to empower the officer in charge of the check post or barrier to seize goods which are not covered by a way bill containing the prescribed particulars and to confiscate them if the penalty levied is not paid, is sought to be questioned in these writ petitions.

2. The Anantapur District Co-operative Marketing Society Ltd. is the first petitioner in W. P. No. 4815 of 1968 while the second petitioner therein is a private transport company. Their case is that while 'urea' released in favour of the first petitioner by the Joint Director of Food was being transported from Vijayawada to Hindupur in a lorry belonging to the second petitioner on 19th June, 1968, the Special Assistant Commercial Tax Officer (Evasions), Narasaraopet (R-l), stopped the vehicle and seized the goods on the ground that the way bill relating to them was defective and later passed an illegal order dated 1st September, 1969, confiscating 160 bags of urea. The facts giving rise to the other W. P. No. 5101 of 1968 are almost similar to those of W.P. No. 4815 of 1968. The petitioner in this case is a registered dealer carrying on wholesale business in jaggery. When 262 bags of jaggery purchased on his behalf in the Chittoor district were being transported to his place of business at Machilipatnam on 18th October, 1968, by means of a lorry, the Commercial Tax Officer, Chittoor (R-2), stopped the vehicle at a place lying 3 or 4 miles away from Chittoor though there was no check post, there and high-handedly seized the goods notwithstanding that the way bill relating to them contained the required particulars, and had the same removed to his office at Chittoor. The next day he passed an order to the effect that the jaggery was seized pending further enquiry into the matter as the purchase vouchers were found to be concocted. All the efforts of the petitioner to convince him that the goods were not liable to be seized proved futile and he ultimately served the petitioner with a notice dated 15th November, 1968, proposing to levy a penalty of Rs. 1,675.92 under Section 29 of the Act. This act of the second respondent is illegal and without jurisdiction. Hence these petitions for the issuance of a writ of certiorari quashing the order of the Special Assistant Commercial Tax Officer (Evasions), Narasaraopet, dated 1st September, 1968, and a writ of mandamus directing the Commercial Tax Officer, Chittoor, to restore the 262 bags of jaggery seized by him, respectively.

3. The principal ground on which the legality of the seizures and the subsequent order confiscating the goods and proposing a penalty are questioned is that Section 29 of the Act, in so far as it purports to empower the officer in charge of the check post or barrier or other officer, it any, empowered under Sub-section (2) thereof to seize the goods and also to confiscate them if the penalty levied in respect of those goods is not paid within the time prescribed is ultra vires the powers of the State Legislature besides being violative of the provisions of articles 14, 19 and 31 of the Constitution of India.

4. In order to appreciate this contention, it is necessary to notice the section which reads as under :

29, Establishment of check post or barrier and inspection of goods while in transit.-(1) If the State Government or the Board of Revenue consider or considers it necessary that with a view to prevent or check evasion of tax under this Act in any place or places in the State, it is necessary so to do, the State Government or the Board of Revenue may by notification direct the setting up of a check post or the erection of a barrier, or both, at such place or places as may be notified.

(2) At every check post or barrier mentioned in Sub-section (1) or at any other place when so required by any officer empowered by the State Government in this behalf, the driver or any other person in charge of a goods vehicle or boat shall stop the vehicle or boat, as the case may be, and keep it stationary as long as may reasonably be necessary, and allow the officer in charge of the check post or barrier, or the officer empowered as aforesaid, to examine the contents in the vehicle or boat and inspect all records relating to the goods carried, which are in the possession of such driver or other person in charge, who shall, if so required give his name and address and the name and address of the owner of the vehicle or boat.

(3) If any goods which are under transport by a goods vehicle or a boat are not covered by a way bill issued by the person who consigns the goods in such form and containing such particulars as may be prescribed, the officer in charge of the check post or the barrier or the officer empowered under Sub-section (2) shall have power to seize the goods and to levy-

(i) in the case of goods exempted under Section 8 or Section 9, a penalty not exceeding rupees five hundred where the non-production of the way bill was wilful;

(ii) in the case of goods other than those exempted under Section 8 or Section 9, a penalty equal to five times the tax leviable on the goods where the non-production of the way bill was wilful :

Provided that before taking action for the levy of penalty as aforesaid, such officer shall give the person affected an opportunity of being heard while making an enquiry in the manner prescribed.

(4) Where the penalty levied under Sub-section (3) is paid, the goods so seized shall be released, but where such penalty is not paid by the person concerned, within the time prescribed, such officer shall confiscate the goods.

5. It will be seen from what has been extracted above that Sub-section (1) provides for the establishment of check post or erection of barriers or both, by the State Government or the Board of Revenue if they should consider it necessary to do so for the purpose of preventing evasion of tax. Sub-section (2) casts an obligation on the driver or any other person in charge of the goods vehicle or boat to stop the vehicle or the boat and keep it stationary, if so required by the officer empowered in that behalf and to allow him or the officer in charge of the check post or barrier to examine the contents of the vehicle or boat and also inspect the records relating to the goods besides furnishing his name and address and similar particulars relating to the owner of the vehicle or boat. Sub-section (3) authorises the officer concerned to seize the goods and levy the penalty prescribed in Clauses (i) and (ii) thereof after giving the affected person an opportunity of being heard, if the goods transported by the vehicle or boat are not covered by a way bill, issued by the consignor and containing the prescribed particulars. Sub-section (4) provides for the release of the seized goods if the penalty levied under Sub-section (3) is paid within the prescribed time failing which they are liable to be confiscated. It is the contention of the learned counsel, Sri Anantha Babu, that the impugned provisions of Section 29, viz., Sub-sections (3) and (4), are beyond the legislative competence of the State and therefore void. It is, on the other hand, argued for the respondents that Sub-sections (3) and (4) of Section 29 are perfectly valid being well within the legislative competence of the State by virtue of entry 54 of List II of the Seventh Schedule,

6. The State Legislature has no dobut the power to make laws with respect to 'taxes on the sale or purchase of goods other than newspapers, subject to the provisions of entry 92A of List I but the question is whether the power to seize and confiscate goods which are not covered by a way bill containing the prescribed particulars is comprehended by this entry. In other words, the question is whether the power to make laws for the imposition of taxes on the sale or purchase of goods carries with it the power to seize them and levy a penalty and also to confiscate the same on failure to pay the penalty within the prescribed time if they are not covered by a way bill containing the required particulars. Sri Anantha Babu does not dispute that the power to make laws on a specified topic takes within its ambit the power to legislate for matters which are ancillary thereto and that the State Legislature is therefore competent to enact suitable provisions for preventing evasion of tax while making laws for the levy of taxes on the sale or purchase of the goods ; but he argues that the power to seize the goods and confiscate them is neither ancillary nor incidental to the exercise of the power conferred on the State Legislature by entry 54 of List II as, according to him, it is too much to assume that all goods transported by means of a vehicle or boat from one place to another within the State, without a way bill containing the prescribed particulars, are goods in respect of which payment of tax has been evaded. He cited the instances of a person moving his personal effects in a vehicle or boat from one place to another and an agriculturist transporting the commodity raised by him in his own field from one place to another, to fortify his aforesaid contention.

7. The question as to whether the power to seize and confiscate goods is ancillary to the power to make laws for the levy of tax on the sale or purchase of goods was answered in the negative by their Lordships of the Supreme Court while dealing with a case arising under Section 42(3) of the Madras General Sales Tax Act, 1959, the relevant provisions whereof are pan materia with those of the impugned Sub-sections (3) and (4) of Section 29 of the A.P.G.S.T. Act. The facts of that case, viz., Check Post Officer v. K.P. Abdulla and Bros [1971] 27 S.T.C. 1(S.C.) are as follows : A motor lorry proceeding along a highway from Coimbatore in the State of Madras towards the border of the Kerala State was found, on a search by the Check Post Officer, to be carrying certain goods which were not covered by a bill of sale or delivery note. Suspecting evasion of sales tax, the Check Post Officer by his order dated 2nd March, 1965, confiscated the goods and gave an option to the owners to pay Rs. 1,000 and penalty in lieu of confiscation. The validity of Section 42(3) of the Madras General Sales Tax Act, 1959, in pursuance of which the Check Post Officer purported to seize and confiscate the goods was thereupon challenged by the owners by means of writ petitions in the High Court of Madras. A learned single Judge of that High Court rejected the petitions but the appeals preferred by the owners were allowed by a Bench of that court and the impugned orders were set aside. The appeals, which the State had thereafter preferred, were dismissed by their Lordships of the Supreme Court, as, according to them, the provision contained in Section 42(3) of the Madras General Sales Tax Act, 1959, is not ancillary or incidental to the power to tax sale of goods under entry 54 of List II of Schedule VII of the Constitution of India and is therefore invalid. Shah, J., as he then was, speaking for the court, observed :

A taxing entry therefore confers power upon the Legislature to legislate for matters ancillary or incidental including provisions for preventing evasion of tax. Sub-sections (1) and (2) of Section 42 are intended to set up machinery for preventing evasion of sales tax. But, in our judgment, the power to confiscate goods carried in a vehicle cannot be said to be fairly and reasonably comprehended in the power to legislate in respect of taxes on sale or purchase of goods, 'By Sub-section (3) the officer in charge of the check post or barrier has the power to seize and confiscate any goods which are being carried in any vehicle if they are not covered by the documents specified in the three sub-clauses. Sub-section (3) assumes that all goods carried in a vehicle near a check post are goods which have been sold within the State of Madras and in respect of which liability to pay sales tax has arisen, and authorises the Check Post Officer, unless the specified documents are produced at the check ,post or the barrier, to seize and confiscate the goods and to give an option to the person affected to pay penalty in lieu of confiscation. A provision so enacted on the assumption that goods carried in a vehicle from one State to another must be presumed to be transported after sale within the State is unwarranted. In any event, power conferred by Sub-section (3) to seize and confiscate and to levy penalty in respect of all goods which are carried in a vehicle whether the goods are sold or not is not incidental or ancillary to the power to levy sales tax. A person carrying his own goods even as personal luggage from one State to another or for consumption, because he is unable to produce the documents specified in Clauses (i), (ii) and (iii) of Sub-section (3) of Section 42, stands in danger of having his own goods orfeited....

In the present case, however, the power to confiscate the goods and to levy penalty in lieu of confiscation, when in respect of the goods found in a vehicle the driver of the vehicle is not carrying with him the documents specified therein is not a provision which is ancillary or incidental to the power to tax sale of goods.

8. Learned counsel for the respondents has not been able to refer us to any decision contra in support of his contention that the power conferred by Sub-sections (3) and (4) of Section 29 of the Act to seize and confiscate the goods if penalty levied thereon is not paid is ancillary or incidental tc the power to tax sale or purchase of goods under entry 54 of List II ol Schedule VII of the Constitution. We must, therefore, agree with the petitioners that Sub-sections (3) and (4) of Section 29 of the Act, which empower the concerned officer to seize the goods which are not covered bj a way bill containing the prescribed particulars and to confiscate them iJ the penalty levied is not paid within the time limited for the purpose, art beyond the legislative competence of the State and are, therefore, not valid.

9. In the view expressed above, it is unnecessary to examine the other contentions urged on behalf of the petitioners to assail the validity of the impugned provisions of Section 29.

10. In the result, therefore, both the petitions are allowed with costs and writ of certiorari and mandamus respectively as prayed for in those petitions will issue. Advocate's fee Rs. 100 in each petition.


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