UNION OF INDIA Vs. MAHABIR PARSHAD AND SONS

JUDGEMENT

(1.) This is a petition u/Art. 226 and 227 of the Constitution of India filed by Union of India in respect of some orders passed under the Delhi Municipal Corporation Act, 1957 (the Act) relating to terminal tax. The respondent M/s. Mahabir Parshad & Sons had imported some sanitary goods in July 1971. On Aug. 10, 1971 (TTO) Terminal Tax Officer noted that the statement of Sh. Kunj Behari Lal belonging to the first respondent firm, showed that there was a misdeclaration for the purposes of evading terminal tax and imposed the penalty at the rate of ten times the tax. An appeal was taken to Shri M.K. Chawla, Additional District Judge, Delhi u/s 169 read with Sections 178 to 183 of the Act. The appeal was rejected by the orders dated July 20, 1972. Thereafter a review application was filed which was decided by the ADJ on 1.9.73. Therein it was noted that there was Rule 39 of Delhi Terminal Tax Rules which applied to the particular case i.e. wrong declaration. The Rule provided that on conviction a fine of Rs. 100.00 could be imposed by the Magistrate. As it was a case of wrong declaration to which a particular rule applies, the ADJ accepted the review and held that the TTO was not competent to impose ten times penalty. Another point which was discussed by the learned ADJ was that there was a judgment of the Punjab High Court in Gian Chand v. State (1958 PLR 539) in which it was held that when dutiable articles were introduced within the octroi limits of the municipality the municipality had to prove that the accused attempted to do so with intent to defraud and unless the intention was established there was no offence.

(2.) In the case of Delhi Municipal Corporation Act, Section 464 SLOWS that evading payment of tax by introducing goods within the octroi limits of Delhi also involves a punishment which may extend to ten times of the value of the goods imported. Furthermore, it shows that any person who does it or abets such introduction can be liable to this penalty. It was urged before us that this is not a criminal offence because it is a penalty and not a punishment. We do not go into the question and leave it open for a better case. It was brought to our notice that there is a DB judgment of this Court in M/s. Parkash Roadlines Pvt. Ltd. v. Union of India (CW 903/73) wherein it would appear that TTO was competent to act u/s 464 of the Act, but, the judgment only states that a show cause notice could be issued by such officer. We do not know what actually happened in that case at the end as to whether the punishment was actually imposed by the TTO. or not. As to which court and which authority can act u/s 464 of the Act will have to be decided in some other case.

(3.) For the present, we proceed on the basis that the TTO could take action in this respect but the ground on which the ADJ has set aside the action u/s 464 of the Act is that the municipality has not proved the ingredient of Section 464 of the Act. He stated as follows :