2017 (4) TMI 132 - HC - VAT and Sales Tax

Detention of goods - penalty - the petitioner s case is that in the absence of any statutory basis and the publication of relevant forms the goods vehicles plied by its members cannot be subjected to detention penalty or any coercive action - Held that - when the Delhi Sales Tax Act was in force the DVAT authorities after the enactment of Delhi VAT Act 2005 have chosen not to publish the relevant forms. They merely appear to have drafted certain forms and have assumed that the general public i.e. goods transporters are expected to know it and use it - It is a well settled proposition of law as espoused in B.K. Srinivasan v. State of Karnataka 1987 (1) TMI 483 - SUPREME COURT that in the absence of a proper publication of the rules or statutory instrument the action of the executive authorities is unsupportable by law - till the relevant forms are published in accordance with law and the amended rules are brought into force again by operation of law the transporters especially the goods carriers cannot be compelled to carry such documents with them under pain or coercive action such as detention and penalty - petition allowed - decided in favor of petitioner.

Summary

Issues:
Transporter association aggrieved by absence of statutory basis for detention of goods vehicles.

Analysis:
1. The petitioner, a transporter association, challenged the detention and penalty imposed on goods vehicles operated by its members due to the absence of a statutory basis and publication of relevant forms. They contended that the Carriage by Road Act, 2007 regulates interstate transport and requires reasonable declarations from vehicle owners. The Supreme Court's directive in a previous case highlighted the necessity of printed forms for compliance.

2. The petitioner argued that no valid form has been published to date, relying on forms 34 and 35, which were later replaced by T-1 and T-2, and subsequently by DS-1 and DS-2. However, DS-1 was withdrawn, leaving only DS-2 in existence. The respondents claimed that DS-2 is necessary to prevent mis-declarations or abuse by transporters, citing Section 61 of the DVAT Act, which empowers authorities to search and detain goods vehicles for inspection.

3. Rule 43 mandates the carrying of specific records by the person in charge of a goods vehicle, including transport receipts and declarations. The rule emphasizes the importance of maintaining and submitting these forms for inspection. The court noted that while the DVAT authorities had not published the relevant forms, they expected transporters to be aware of and use them, contrary to legal principles requiring proper publication of rules.

4. Citing legal precedent, the court held that in the absence of proper publication of rules or statutory instruments, executive actions are legally unsustainable. The respondents' reliance on DS-2 as the relevant form, despite Rule 43 mentioning DVAT 34 & 35/35A, without formal amendment or publication, renders any coercive action against transporters invalid.

5. Consequently, the court ruled in favor of the petitioner, stating that transporters cannot be compelled to carry unpublished forms until they are lawfully published and rules amended. The respondents assured the court of taking steps to amend rules and publish forms, leading to the allowance of the writ petition and disposal of all applications.