M.S.ISMAIL Vs. INSPECTING ASSISTANT COMMISSIONER

JUDGEMENT

(1.) PETITIONER is a dealer in Rubber. According to the petitioner, in December, 2003, he sold a consignment of 10 tons of Rubber to another dealer. It is stated that as per the agreement, the petitioner was to deliver the Rubber at the Government Warehouse at Muthalamada in Palakkad District. It is stated that en-route, the intelligence Officer detained the vehicle at the 4th Mile. Thereafter, notice was issued under Section 30E of the KGST Act. At that stage, the petitioner filed writ petition No.38678 of 2003. On the basis of the interim order obtained in that writ petition, the petitioner furnished a bank guarantee for Rs.1,26,960.00 and bond for Rs.1,94,440.00. Accordingly, the vehicle and the goods were released. Finally, by Ext.P1 order, penalty under Section 30E was levied on the petitioner and the owner of the goods. That was confirmed by respondents 2 and 3 by dismissing the revisions as per Exts.P2 and P4 orders. It is thereupon that this writ petition is filed.

(2.) THE first prayer in the writ petition is to declare Section 30E of the KGST Act, as unconstitutional. This contention is raised relying on the Apex Court judgment in the Check Post Officer, Coimbatore v. K.P.Abdulla and Brothers[(1971) 27 STC I] where, according to the petitioner, it has been held that the power to seize and confiscate and to levy penalty in respect of goods, which are carried in a vehicle is not incidental or ancillary to the power to levy sales tax. I am unable to accept this contention for the simple reason that after referring to the aforesaid judgment, the Apex Court in its judgment in Commercial Tax Officer v. Swastik Roadways [(2004)135 STC 1] held thus: "

(3.) AS already stated, according to the petitioner, the goods were to be delivered at the Muthalamada Government Warehouse. However, reading of the impugned orders show that the goods were seized near to the Tamil Nadu border. There is absolutely no explanation why the goods were taken to the border if the goods were to be delivered at Muthalamada. The fact that the goods were consigned to be taken outside the State was admitted by the driver in his statement. Although, this is sought to be explained by the petitioner as a case of mistake, the petitioner has not taken any effort to examine the driver in the penalty proceedings. That apart, the goods were transported in lorry bearing registration No. TN A1 C 5454. As per the provisions of Rule 90(7) of the Central Motor Vehicle Rules, a lorry with a national permit can transport the goods only for transportation outside the State except in the case of delivery within the home State. Admittedly, the lorry in question is a national permit one and that too a Tamil Nadu registration vehicle.