MENA TRANSPORT Vs. ASSISTANT COMMISSIONER OF COMMERCIAL TAX

JUDGEMENT

(1.) Since the common question of law is involved in both the petitions and, therefore, they are being disposed of by this order. In W.P. No. 1192 of 2005, the petitioner is challenging the order dated February 26, 2005 and in W.P. No. 1194 of 2005, the petitioner is challenging the order dated February 26, 2005, annexure P/9, passed in Revision Nos. 16/04 and 17/04 by which the order passed by the Assistant Commissioner, Commercial Tax, in Penalty Case Nos. 48/03-04 with respect to vehicle No. M.P. 09-KB-0817 and Penalty Case No. 49/03-04 with respect to vehicle No. M.P. 09-KB-2195 has been confirmed and both the revision petitions filed by the petitioner were dismissed.

(2.) The brief facts of the case are that the petitioner is a transporter engaged in the business of transportation of goods. That certain consignment contending various consumer goods were loaded at Bombay in two trucks bearing Registration Nos. M.P. 09-KB-0817 and M.P. 09-KB-2195. The goods loaded in the truck were consigned by various parties for delivery to M/s. Hindustan Lever Ltd. at different places. Part of the goods were to be delivered at Indore and Jabalpur in the State of Madhya Pradesh and part of the goods to be delivered at places outside the State of Madhya Pradesh, viz., Varanasi and Shuklaganj in Uttar Pradesh. The goods consigned to the places outside Madhya Pradesh were only to pass through the State of Madhya Pradesh and were not meant for the sale in Madhya Pradesh. The truck No. 817 reached Sendhwa check-post on May 27, 2003 and truck No. 2195 reached on May 28, 2003. They were stopped and detained at check-post barrier. It is the case of the petitioner that the requisite declaration in form No. 75 were not available with the trucks. Though the case of the petitioner is that the trucks were having invoice, builty, challan, etc., contained all the necessary details except the requisite declarations, in respect of some of the cases and in some cases declaration was found to be incorrect. Both the trucks were detained at the check-post because of requisite declarations in form No. 75 in respect of consignment of Jabalpur and some wrong declarations were sent instead of form No. 75 in form No. 85.

(3.) The petitioner received two notices in form No. 76 under section 45A(10) of the M.P. Commercial Tax Act, 1994 (in short, "the Act of 1994"), directing the petitioner to show cause on June 11, 2003 that for not filing proper declarations why a penalty of Rs. 7,80,270 and Rs. 26,90,860 be not imposed. The authorities without providing opportunity of hearing and without waiting till the date of hearing up to June 11, 2003 passed an order imposing penalty on June 6, 2003 and thereafter on June 13, 2003. The authority rejected the reply of the petitioner, which was filed on June 11, 2003. The petitioner challenged the said action by filing Writ Petition No. 1108 of 2003 before the High Court. The learned writ court by order dated July 28, 2003 set aside the order of penalty with the observation that the petitioner should be provided an opportunity of hearing before passing any order of penalty.