KAMAL KUMAR GOYAL Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioner before us is a partner of the Central Goods Transport Corporation which carries on transport business by road, has offices located at various important cities of India and engages in transport of goods for payment. On 21st December, 1970, two vehicles of this organisation, bearing Registration Numbers ORU 1036 and BRV 5388, were carrying various goods of different consignees from Calcutta by road. Some were meant to be delivered at Cuttack within this State and others were meant for Srikakulam within the State of Andhra Pradesh. When the two trucks arrived at the sales tax check-gate located at Gandarpur-Sikharpur on the National High Way No. 5, at the outskirts of Cuttack town, on 23rd December, 1970, the check-gate authorities inspected the goods carried by the two vehicles. They found that certain goods were not covered by way-bills as prescribed under the Orissa Sales Tax Act (hereinafter referred to as the "act") and the Rules made thereunder. Accordingly, the said goods were seized by the authorities at the check-gate as per seizure lists bearing numbers 6 and 7 dated 23rd December, 1970 (annexures 1 and 1/a ). The Assistant Sales Tax Officer attached to the check-gate issued a notice to the firm to show cause by 30th December, 1970, as to why the goods so seized may not be confiscated (annexure 2 series ). On the appointed day, a representative of the firm appeared, showed cause and prayed for release of the goods. By notice dated 3rd February, 1971, the Assistant Sales Tax Officer directed that firm to furnish the names and addressed of the persons on whose behalf the seized goods were being carried and to furnish documents in support of such statement as may be made. On 7th February, 1971, compliance was effected. But, that day, the check-gate authority issued notice to the firm to show cause as to why penalty amounting to twice the tax chargeable in respect of the sale of the goods seized may not be imposed. On 10th February, 1971, cause was shown and jurisdiction of the Assistant Sales Tax Officer was disputed. On 16th February, 1971, the said authority passed an order for confiscation of the goods seized excepting a part thereof relating to a dealer at Cuttack said to be the consignee thereof. The petitioner filed this application on 24th February, 1971, challenging the vires of section 16-A of the Act as also rule 94 of the Orissa Sales Tax Rules (hereinafter referred to as the "rules") and has asked this court to quash the various orders of the check-gate authority and to direct return of the goods.

(2.) IN the counter-affidavit given by the check-gate authority on behalf of the opposites, the statutory provisions in the Act have been contended to be intra vires and the action has been sought to be justified.

(3.) THE provisions for establishing check posts are now found almost in each of the States' Sales Tax Acts [see section 29 of the Andhra Pradesh General Sales Tax Act of 1957, section 41 of the Bihar Sales Tax Act of 1959, section 23-A of the Bengal Finance (Sales Tax) Act of 1941, as extended to the Union Territory of Delhi, section 29 of the Kerala General Sales Tax Act of 1963, section 29-A of the Madhya Pradesh General Sales Tax Act, 1958, section 42 of the Madras General Sales Tax Act of 1959, section 22-A of the Rajasthan Sales Tax Act of 1954, and section 28 of the U. P. Sales Tax Act of 1948]. These provisions are, however, not of a uniform type. The powers of seizure and confiscation are only available in some of the Acts while others only confer jurisdiction on the check-gate authorities to detain and inspect the consignment carried by road or water. Some of these statutory provisions have been subjected to attacks on the question of their vires, such as Venkatachalapathi v. Commercial Tax Inspector ([1965] 16 S. T. C. 894.), where section 28-A of the Mysore Act was challenged; Papanna v. Deputy Commercial Tax Officer ([1967] 19 S. T. C. 506.), where the vires of the appropriate provision in the Andhra Pradesh Act was challenged; Abdulla and Bros. v. Check Post Officer ([1968] 22 S. T. C. 260.) and K. P. Abdulla and Bros. v. Check Post Officer ([1968] 22 S. T. C. 552.), where the vires of the appropriate provision in the Madras Act was challenged; as also A. D. C. M. Society Ltd. v. Special Assistant Commercial Tax Officer ([1972] 29 S. T. C. 649.), where the provision in the Andhra Pradesh Act was also challenged. No consensus is found in these decisions. On examination of the position, some decisions have upheld the statutory provision while the others have found that it is ultra vires.