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TMI Blog1971 (11) TMI 153X X X X Extracts X X X X X X X X Extracts X X X X ..... he consignment was sent to Madras for purpose of being sold by the petitioners as commission agents and that no sale of the goods was involved. There is ample material in the instant case to show that the consignment was sent by the principals to their commission agents and that at no point of time the principals ever intended to "sell" the goods to the petitioners. These goods were intercepted by the Check Post Officer at Ranipet. According to the Check Post Officer, the defects noticed were as follows: "Not covered by bill or delivery note. Transported for commission sales but not supported by an agreement or purchase voucher of the buying dealer or commission agent." The notice was served on Krishna, the driver of the vehicle who was in charge of the same, and the notice said that the driver "contravened section 44 of the Madras General Sales Tax Act, 1959, which has resulted the evasion of tax of Rs. 270". He was, therefore, charged with the offence of transporting goods in violation of section 44; and he was asked to show cause why he should not be prosecuted under section 45(2)(b) of the Madras General Sales Tax Act, 1959. He was, however, given an option to have the abov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer, dated 24th January, 1970. I have already referred to the fact that there were two notices. Apparently, the petitioners want to remove the contents of both the notices, as their case is that they are illegal and without jurisdiction. I may incidentally refer to the special features in W.P. No. 3581 of 1968. Excepting for the fact that the petitioners herein did not send a consignment to their agent for sale on commission and also that the petitioners here did not approach the Check Post Officer in person for a relief, the facts of the two cases are almost similar. In W.P. No. 3581 of 1968, Messrs. W.H. Deeth Co., carrying on business in Madras, secured the services of a public carrier, known as Messrs. Inter-State Transports (P.) Ltd., and sent four dealwood cases of human hair securely packed, and of the value of Rs. 22,000 to their head office, Messrs. W.H. Deeth Co., 210, Dr. Naoroji Road, Bombay-1, for shipment to America. There was also a letter contemporaneously issued by the petitioners but addressed to the transport company instructing them to deliver the goods to their head office at Bombay. That this document accompanied the transport is not in dispute. Neverthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s already stated by me, is more concerned with the collection of tax and has to see to no avoidance or evasion of tax taking place. Therefore, it is for him to establish or, at least, subjectively satisfy himself on material placed before him, that there has been a wilful contravention of the prescriptions in section 44 of the Act. Each case has to be decided on its own merits and no exhaustive rule or guidance can be set, because, circumstances may vary with situations. In the instant case, the one thing that has happened, and which is common to both the cases, is that the goods passed the check post; that was sufficient for the Check Post Officer to assume jurisdiction under section 45(2)(d) read with section 44, and, assume that there has been an evasion of tax, and serve a charge-sheet on the driver on the foot that there has been a wilful contravention of section 44 of the Act. I do not find any justification for the Check Post Officer to find, without a reasonable enquiry, that there has been an evasion of tax. To record a finding that tax has been evaded is to assume that the goods which were under transport were subject to tax. Unless the record discloses that a reasonable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken the precaution of approaching the Check Post Officer (this fact is, however, denied by the respondent) and sought to explain to him that they were prepared to pay the compounding fee if the receipt therefor was given in their name. There was correspondence between the petitioners in W.P. No. 455 of 1970 and the department, and their status as the "owners" of the goods and as "persons interested" in the transport were undoubtedly recognised by the department. In the second case (W.P. No. 3581 of 1968), the documents spoke for themselves. There was the letter addressed by the petitioners at Madras to the motor vehicle operator stating that the goods may be delivered to their head office at Bombay. The particulars, which the driver carried, were indicative of a bona fide act of a branch office transporting goods to its head office for being dealt with there. It is also not in dispute that the Check Post Officer was apprised of the real state of affairs in relation to the goods under transport. It cannot, therefore, be said that the petitioners, in each of these cases, have come to this court without any real interest or without being aggrieved. The reality of the grievance of a pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed", the question is whether the transportation, in these cases, can be said to be in wilful contravention of the provisions of section 44. Grover, J., under similar circumstances, issued a rule in exercise of jurisdiction under article 226 of the Constitution, in Dr. Diwan Chand Aggarwal v. Commissioner of Sales Tax[1963] 14 S.T.C. 51. after relying upon the decision of the Supreme Court in Kavalappara Kottarathil Kochunni v. State of MadrasA.I.R. 1959 S.C. 725. S.R. Das, C.J., in Kavalappara Kottarathil Kochunni v. State of MadrasA.I.R. 1959 S.C. 725.said that"It appears to be well established that the Supreme Court's powers under article 32 are wide enough to make even a declaratory order where that is the proper relief to be given to the aggrieved party." Following this, Grover, J., as he then was, issued a declaratory order in exercise of power under article 226 of the Constitution. I intend doing the same. I am of the view that the challenged notices served on the drivers on the assumption that the transports were irregular or in wilful contravention of section 44 of the Act, are without jurisdiction and it should be declared that the said notices (in both the writ petition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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