TMI Blog1993 (3) TMI 324X X X X Extracts X X X X X X X X Extracts X X X X ..... blic. 2.. For the purpose of printing the directory, the petitioner procured paper from the Tamil Nadu Newsprint Paper Limited at Pugalur, Tiruchirappalli District. The paper was under transport from Pugalur to the petitioner's place at Kochi by lorry TDX 2264 on February 5, 1989, when it was detained at the Gopalapuram Sales Tax Check-post, and a notice exhibit P5 was issued to the driver under section 29A(2) of the Kerala General Sales Tax Act, 1963 ("the Act"), stating that the consignee, the petitioner was not a registered dealer under the Act, and therefore attempt at evasion of sales tax was suspected. The transport was supported by the requisite documents, including delivery note issued under the Tamil Nadu General Sales Tax Act, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs. 30,111 for the purpose of honouring the request made by the Enquiry Officer. This letter exhibit P8 from the bank is dated August 2, 1989, wherein they enclosed a copy of the order of the Enquiry Officer dated July 27, 1989, which had been sent to them by the officer concerned. A copy of that order is exhibit P9. It is seen therefrom that the Enquiry Officer had held that there was attempt at evasion of sales tax by the petitioner. A penalty of Rs. 30,111 was therefore imposed on the petitioner. No copy of this order was ever served on the petitioner, even till date. On receipt of exhibits P8 and P9, and in the absence of any official communication from the Enquiry Officer, the petitioner filed this writ petition seeking to quash exhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is as follows: "I have perused the records and heard the case. Their style of business is as under: They themselves collect advertisements from various sources. They purchase paper, etc., and print the telephone directory relating to Ernakulam tele district. The materials are handed over to Telecom Ernakulam authorities. As such, in this case there is (1) purchase of materials, (2) paying the printing charges of the directory, (3) collecting advertisement charges, etc., Though the sale value of the tele directory is not received from the department, they are getting it by way of advertisement. As such, there is correctly the transactions of a dealer in this case. There is transfer of property for valuable consideration from all conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he transport in question was not a bona fide one and that there is an attempt at evasion of tax. But in the absence of any such materials, it will be improper to detain the goods at the check-post, merely for the reason that the consignee is not a registered dealer under the Act. 8.. Section 29A(2) enables the detention of goods in transit if the officer at the check-post has reason to suspect that the transport is not covered by proper and 'genuine documents or that any person transporting the goods is attempting to evade payment of tax due under the Act. The first clause does not admittedly apply to the case on hand, as the transport was covered by proper and genuine documents. The question is whether the second clause applies to the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing and delivery of the directories. It is more like a franchise granted to the petitioner for the purpose, which does not result in any sale or purchase of goods. Even otherwise, it has not been established as to how the Enquiry Officer could have been satisfied that there was any attempt at evasion of tax. In Sudhi v. Intelligence Officer [1992] 85 STC 337 a Division Bench of this Court, after adverting to the different shades of meaning of the expression "evasion" held that mens rea or the mental element was embedded in the words "evaded" or "sought to be evaded" in section 45A of the Act. The same ratio must apply to section 29A as well when it speaks of "attempting to evade payment of tax". Therefore, when there is scope for a genuine ..... X X X X Extracts X X X X X X X X Extracts X X X X
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