TMI Blog2015 (3) TMI 477X X X X Extracts X X X X X X X X Extracts X X X X ..... ce under Section 47(2), that would fall foul of the statutory prescriptions, and violate Article 301 of the Constitution of India. The elaborate provisions dealing with transport of goods, and the prescription of documents to accompany such transport, intra-State and inter-State, is definitely to ensure revenue collection. It should also further trade and commerce and facilitate smooth movement of goods within and between the States. It is clear that Ext.P1 notice has been issued against the driver of the vehicle, who was in charge of the subsequent transport and 48 (3) deems; only a driver or owner or person, who was in control of the vehicle or the goods, at the time when the delinquency is noticed, to be an assessee in default. However, since, the registered owner of the vehicle, whose vehicle was used in the earlier transportation also, is before this Court, it is directed that the registered owner shall appear before the Commercial Tax Officer, Kasargod on 25.07.2014 when the registered owner shall be issued with a proper notice by the officer, under Section 48(3) and proceedings shall be carried on, against the petitioner or any other person who are held to be jointly and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he e-tokens, being generated on the computer system; it is also submitted that, only on recording electronically the surrender of the transit pass already issued, at the exit check post could a new e-token be generated. The software is stated to be designed; so as to, prevent approval and token generation, for future consignment in such defaulted vehicles. 4. The notice Ext.P1, presumably was issued to the driver, to enable furnishing of evidence as to the delivery of the said transit pass at the exit check post. Technical impediment is projected on the ground of the computerization effected, and the system configuration which bars any electronic system generated tokens, to be issued in the case of vehicles which have failed to surrender a transit pass, issued earlier, at the exit check post. The impediment pleaded by the officer on the basis of the system configuration, seems to be a fact. However while the sales tax enactment is concerned with the transport of goods and its delivery within the State or outside it, the system seems to have given emphasis to the delivery of the transit pass itself. 5. This Court cannot discount the fact that, though a notice under Section 47( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or vessel have been delivered within the State for sale by the owner or consignor of goods or owner or driver or person in charge of such vehicle or vessel such owner or consignor of goods or owner or driver or person in charge of the vehicle or vessel shall be jointly or severally liable to pay tax which shall be assessed and recovered in accordance with the relevant provisions of this Act, irrespective of the limit of any turnover together with an amount of penalty not exceeding twice the amount of such tax as may be assessed, after having given to the person or persons aforesaid an opportunity of being heard by the assessing authority under whose jurisdiction the check post is situate. 7. The aforesaid is a self-contained provision wherein, the legislature has contemplated situations were the transit pass issued to a vehicle at the entry check post is not surrendered at the exit check post. Such omission, according to the provision, gives rise to a presumption, that the goods carried in the vehicle were delivered within the State for sale, inter alia by the owner or consignor of goods or owner or driver or a person in charge of such vehicle or goods and make such persons joi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon'ble Supreme Court reported as Atiabari Tea Company Limited v. State of Assam and others in [AIR 1961 S.C 232], Rajasthan Automobile Transport (Rajasthan) Limited etc. v. State of Rajasthan and others in [AIR 1962 SC 1406] and Khyerbari Tea Company Limited v. State of Assam and others in [AIR 1964 SC 925 at 933]. The distinction between a regularization and restriction as emphasised in the decisions were specifically noticed. The declaration that restrictions obstruct the freedom whereas regulation promote it (sic), was highlighted in the context of Article 301 of the Constitution of India. Section 29 of the Act and Rule 35 of the Rules as it existed then was found to be not worthy of being regarded as merely regulatory, provisions, entailing free flow of goods. 11. The Full Bench found that the wordings of sub section 2 of Section 29 of the Act, indicated a prohibition, which is directly against transport. Sub section 2, as it stood, ordained that no person shall transport the goods across a check post, unless the transport is accompanied by certain documents. It was also observed by the Court that, if the matter rested with a mere obligation to produce certain do ..... X X X X Extracts X X X X X X X X Extracts X X X X
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