A LOGIRAJAN Vs. DEPUTY COMMERCIAL TAX OFFICER

JUDGEMENT

(1.) Being aggrieved by the proceedings in O.R. No. 115/2005-2006, dated March 20, 2006, of the Deputy Commercial Tax Officer, (Roving Squad), Dindigul, the respondent herein, directing the petitioner to pay a tax of Rs. 5,36,250 or to furnish a security for a value of Rs. 18,00,000 in the form, prescribed under rule 35(4) of the Tamil Nadu General Sales Tax Rules, 1959 (hereinafter referred to as "the TNGST Rules") for not remitting the entry tax at 13 per cent under section 3(1) of the Tamil Nadu Tax on Entry of Motor Vehicles into Local Areas Act, 1990, before September 20, 2005, to the Commercial Tax Officer II, Theni, the petitioner has come forward with the present writ petition. It is the case of the petitioner that he is a contractor, engaged in small civil construction works. He has purchased an excavator, Hitachi Model 200 L.C. from Telco Construction Equipment Company Limited, Dharwad District, Karnataka, on August 19, 2005 with proper billing and used for civil construction works at Andipatty. The said excavator was consigned in vehicle bearing Registration No. TN-28-H-9185 from Andipatty to Thanjavur. On March 20, 2006, the Deputy Commercial Tax Officer, (Roving Squad), Dindigul, the respondent herein, intercepted the vehicle and issued a goods detention notice under section 42 of the TNGST Act, stating that the Tamil Nadu Tax on Entry of Motor Vehicles into Local Areas Act, 1990, payable for the excavator was unpaid by the petitioner.

(2.) According to the petitioner, the consignment was taken to the consignee's place with valid documents disclosing all the particulars as required under section 44 of the Tamil Nadu General Sales Tax Act, 1959 (hereinafter referred to as, "the TNGST Act"). He also submitted that the first respondent has no power to detain a vehicle for non-payment of entry tax. The petitioner has contended that in response to the impugned notice, dated March 20, 2006, directing the petitioner to pay a sum of Rs. 5,36,250 under section 42(3)(b) of the TNGST Act, a reply, dated March 20, 2006, was submitted to the Deputy Commercial Tax Officer, (Roving Squad), Dindigul, stating that the petitioner had purchased TATA Hitachi EX-200 LC model excavator from Telco Construction Equipment Company, Limited, Dharwad District, Karnataka on August 19, 2005 and that the said excavator was transported from Andipatty to Thanjavur for construction purposes in another vehicle bearing Registration No. TN-28-H-9185. It is the further submission of the petitioner that though, in the said representation, a decision of this court P.R.P. Granites v. Check-Post Officer/Assistant Commercial Tax Officer, Chennai and another, 2003 132 STC 354 decision of the High Court of Kerala Ray Constructions Ltd. v. Intelligence Officer,, 2005 142 STC 323 Squad No. IV, Kozhikode) were clearly mentioned, and brought to the notice of the Deputy Commercial Tax Officer, (Roving Squad), Dindigul, the respondent herein, stating that the Tamil Nadu Tax on Entry of Motor Vehicle into Local Areas Act, 1990 is not applicable to excavator, the Deputy Commercial Tax Officer, (Roving Squad), Dindigul, the respondent herein, did not release the excavator. In the said circumstances, the petitioner has filed the present writ petition for the aforesaid prayer.

(3.) In addition to the abovesaid pleadings, Mr. A. Chandrasekaran, learned counsel for the petitioner, submitted that section 42 of the TNGST Act has no application to the present case. According to him, the excavator has been purchased from Dharwad by paying Central sales tax. He submitted that when the Tamil Nadu Tax on Entry of Motor Vehicles into Local Areas Act, 1990 is not applicable to excavator, the impugned notice is ex facie illegal. He relied on the decisions stated supra.