TMI Blog2002 (9) TMI 823X X X X Extracts X X X X X X X X Extracts X X X X ..... also been heard. 3.. The arguments advanced on behalf of the petitioners are two-fold. The requirement of obtaining a despatch note in form 35 as enjoined by the provisions of the aforesaid Rules is contended by the petitioners to be beyond the rule-making power and, therefore, ultra vires the provisions of the Act as well as the provisions of article 246 of the Constitution. Additionally, the aforesaid requirement under the Rules has been challenged on the ground that the same is violative of article 301 read with article 304 as enshrined in Part XIII of the Constitution. 4. Dr. Saraf, in elaboration of the arguments advanced, has contended that section 46(1) of the Assam General Sales Tax Act, 1993 (hereinafter referred to as "the Assam Act") imposes an embargo on transport from any railway station, steamer station, airport, post office or any other place, any consignment of such goods exceeding such quantities as may be specified by the State Government from time to time by notification in the Official Gazette except in accordance with such conditions as may be specified in such notification. The aforesaid embargo has been imposed by section 46(1) of the Act in order to en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce provided therein and making it with his seal and signature in token of having verified it, shall send it to the Senior Superintendent of Taxes or the Superintendent of Taxes having jurisdiction over the concerned dealer;" "43(7)(j)(iii) in case of despatch of taxable goods outside the State from a place within Assam, despatch note (in form 35), invoice, consignment note, manifest of the transporter, carrier or transporting agent;". 5.. Rule 43(7)(j)(iii) of the Rules as brought in by the amendment is in substitution of rule 42(6)(j) as originally enacted which is as under: "(j) For the purposes of section 46, the following shall be the documents so far as they are applicable to the case; (i) Bill of sale (form XXIII); (ii) Delivery note (form XXIV); (iii) Consignment notes and invoices; (iv) Tax clearance certificate from the concerned assessing officer (form XIII); (v) Transit pass (form XXV) whenever applicable; (vi) Any other document as may be notified by the Commissioner; (vii) Declaration to be submitted by the carrier or bailee on inspection by the officer (form XXVI)." 6.. The short and precise ground of challenge as advanced by the learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e State of Assam from any place within the State has the effect of impeding the free-flow of trade and commerce as enshrined under article 301 of the Constitution and such impediment in the free-flow of trade and commerce not being saved by article 304 of the Constitution, the impugned Rules violate Part XIII of the Constitution. In support of the aforesaid ground of challenge, Dr. Saraf has placed before the court the pleadings contained in the writ petitions which are to the effect that unless and until a despatch note in form 35 is obtained by the dealer from the office of the jurisdictional Sales Tax Officer, there cannot be any movement of goods to any destination outside the State. The practice and procedure for obtaining the said forms is alleged to be cumbersome. The issue of forms is dependant on the availability of the same in the office as well as upon the availability of the concerned officer. All these, according to the learned counsel, have the effect of causing an immediate interference in the movement of goods outside the State resultantly violating article 301 read with article 304 of the Constitution. Reliance in this regard has been placed by the learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asion of tax payable under the said Act is traceable to sections 46 and 72 of the Act. By virtue of the provisions of entry 92A of List I and entry 54 of List II of the Seventh Schedule to the Constitution, the power of the State Government to frame measures for levy and collection of tax and for purposes ancillary thereto, must be understood to be confined to intra-State transaction. Such power of the State authority would not extend to inter-State movement of goods. What is noticeable is that by the amendment to the Rules under challenge brought in by the notification dated September 11, 2000, pre-conditions have been imposed requiring the dealers to obtain a despatch note in form 35 in respect of movement of goods outside the State of Assam from any place within the State. The Rules in force prior to the amendment did not impose any such requirement. Under entry 54 of List II, the power of the State Legislature to levy tax on sales and purchase of goods is subject to the provisions of entry 92-A of the List I which pertains to the interState transactions. The State Legislature would not have any power to enact any law or make any provision relating to levy and collection of tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorised. The ratio of the aforesaid decision would squarely apply to the facts of the present case. In the other case, cited at the Bar, i.e., State of Bihar v. Harihar Prasad Debuka reported in [1989] 73 STC 353 (SC); (1989) 2 SCC 192, Hansraj Bagrecha [1971] 27 STC 4 (SC); (1971) 1 SCC 59, was distinguished on facts and the challenge made therein was negatived. The apex Court in the latter case, i.e., State of Bihar v. Harihar Prasad Debuka [1989] 73 STC 353; (1989) 2 SCC 192, had dealt with the validity of the Rules challenged therein from the standpoint of article 301/304 of the Constitution which relates to the second ground of challenge in the present proceedings, an aspect to which this Court will turn only if necessary. 10.. The submissions advanced by Mr. Choudhury, learned counsel for the Revenue to the effect that the provisions of the impugned Rules have been primarily designed to ensure and facilitate levy and collection of tax under the Assam Act and the encroachment on inter-State transaction, if any, is purely incidental would hardly merit any attention in view of the clear stand taken by the Revenue in the aforesaid affidavit filed that the provisions of the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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