TMI Blog2007 (5) TMI 570X X X X Extracts X X X X X X X X Extracts X X X X ..... rintendent of Taxes, Jagiroad Check-post, which falls in Assam, has not been allowing the petitioner's vehicles, loaded with coal to be carried to the railway yard, at Jagiroad, meant for being transported to other States of the country, to cross the barriers of the check-post, at Jagiroad, without depositing the security in advance. Contending that such demand of security is in violation of the Assam Value Added Tax Act, 2003 (in short, the said Act ), the petitioner has, with the help of the present writ application made under article 226 of the Constitution of India, sought for issuance of appropriate writ(s) declaring the demand of security by respondent No. 3, as illegal and without jurisdiction and commanding the respondents not to insist on deposit of security in respect of the vehicles carrying the petitioner's coal sold to various customers in different parts of the country and passing, in the course of inter-State trade and commerce, through the State of Assam. It is also the grievance of the petitioner that though no written order has been issued to the petitioner as regards the demand of security by respondent No. 3, but on making an inquiry, in this regard, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where the transporter of the goods has no permanent address within the State, the officer-in-charge of the entry check-post or the officer empowered by the Commissioner shall before issuing the transit pass, require the driver or the person-in-charge of the vehicle, or the transporter to furnish a security equivalent to the amount of tax calculated on the goods at the rate of tax prevailing in the State, in the form of a demand draft, call deposit or guarantee from a Scheduled Bank. The security so furnished shall be released to the person who furnished the security on submission of the transit pass as per provision of sub-section (6). If, however, the transit pass is not submitted in time as provided in the said sub-section or is submitted without due endorsement(s) as provided in the same sub-section, the amount of such security shall be adjusted against the amount of tax that may be assessed under sub-section (6) and shall be deposited into the Government account. A microscopic reading of the provisions contained in sub-section (4) of section 76 of the said Act makes it clear that where it appears to the officerin-charge of an entry check-post or barrier or an officer em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes that the goods in transit will be accompanied by valid and complete documents on the basis of which an application is required to be made for issue of a transit pass. The authority at the check gate is required by the Act to satisfy itself that the documents as well as the goods actually carried in the truck are in order and thereafter a transit pass is required to be issued to facilitate further movement within the State. At the last check-post within Assam (hereinafter referred as, the exit check-post ) the goods as well as the documents are required to be re-verified in the light of the entries made in the transit pass issued and if everything is in order the goods are to be permitted to leave the territories of the State of Assam. An endorsement to the effect that everything is in order, i.e., goods mentioned in the transit pass have been transported out of the State is required to be made in the transit pass by the authorities of the exit check-post. The transit pass containing such an endorsement is required to be filed before the authorities of the entry check-post so that satisfaction can be derived that none of the goods which are carried in the course of inter-State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e language and nothing else, laments that the draftsmen have not provided for this and that, or have been guilty of some or other ambiguity. It would certainly save the Judges trouble if the Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears, a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give force and life to the intention of Legislature. A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do so as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases.' 8.. The above observations, with due elasticity, the court must add and observe, must apply to myriad situations in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demand draft, call deposit or guarantee from a scheduled bank, provided that it appears to the officers aforementioned that the driver or the person-in-charge of the vehicle or the transporter is not giving the correct and complete documents relating to the consignment of the goods and correct information about the ownership of the goods and their destination and also in a case, where the transporter of the goods, has no permanent address within the State. This, in turn, shows that for the purpose of raising demand for security, the conditions precedent, which make an officer demand deposit of such security, must exist or be satisfied. Logically, therefore, demand for security cannot be a routine affair. In fact, in the face of the clear language of sub-section (4) of section 76 of the said Act, a demand for security can be made only in exceptional cases, when the conditions, indicating hereinbefore, are fulfilled. In the case at hand, it is an admitted position that for the purpose of raising the demand for deposit of security, the respondents, particularly, respondent No. 3, has assigned no reason and communicated no reason to the petitioner or his authorised representative. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hers. Because of what has been discussed and pointed out above, it becomes transparent that no demand for security can be raised except for reasons as are mentioned in sub-section (4) of section 76 of the said Act and such demand, if raised, shall be accompanied by communication of reason for raising such a demand howsoever briefly recorded the reasons may be. Considering, therefore, the matter in its entirety and in the interest of justice, this writ petition is disposed of with direction to the respondents, particularly, respondent No. 3, not to demand deposit of security by invoking his powers under sub-section (4) of section 76 of the said Act unless the conditions, prescribed in sub-section (4) of section 76 of the said Act, are fulfilled. It is also made clear that respondent No. 3 can demand security only on fulfilment of conditions indicated hereinabove and not because of the fact that a general direction has been given by respondent No. 2 not to allow any vehicle, carrying coal, to cross the barrier of check gate, at Jagiroad, without depositing security. It is further made clear that in terms of the observations and directions given hereinabove, the interim directi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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