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TMI Blog1992 (6) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... has to pass through several check-posts within the State. To pass through the checkpost delivery notes will have to be shown to the officers-in-charge of the checkposts. There are several check-posts within the State and the goods have to be purchased at different places. The goods have to be transported on each occasion after purchasing and loading and if the petitioner or its agents have to rush to the respondents to get delivery note before transport, it will create innumerable difficulties and hardship and operate as an impediment in transporting the goods of the petitioner. The petitioner has a right to transport the goods and it has a fundamental right to carry on the business or trade. Reasonable restriction can no doubt be imposed and the question to be considered is whether the demand of the respondents or the insistence of the respondents to get delivery note on each occasion after loading goods in the lorry is justified. In short, the question is whether the petitioner is entitled to get blank delivery notes in book form. I am not concerned with the expediency or the advisability of the procedure in the light of the intention of the respondents to check evasion of tax. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be kept in custody and records relating thereto maintained, the manner in which any such form may be used and any such declaration may be furnished; * * * (o) the issue of delivery notes or way-bills in respect of goods delivered or transferred to retail dealers in pursuance of sales effected to them, the form and manner of their issue and the time for which they should be preserved. Section 57(2)(o) provides for making rule for the issuance of delivery notes in respect of goods and section 57(2)(i) provides for making rule in respect of the form in which and particulars to be contained in the declaration. Rules made pursuant to section 57, are rules 32, 35, 33A and 35A. Rule 32(17) of the Kerala General Sales Tax Rules, 1963, states that every wholesale dealer while delivering goods to a retail dealer in pursuance of a sale where no sale bill is issued or every person who consigns goods by any vehicle or vessel or any other means in pursuance of a sale where a sale bill is not issued or consigns goods through the said means from one godown to another or from one of his shops to another for the purpose of storage or sale, shall issue a delivery note in form 26. 4.. Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form containing several delivery notes. Sub-rule (3) of rule 33A makes the position further clear. It requires any unused delivery note remaining in stock with a dealer to be surrendered to the assessing authority on discontinuance of the business by the dealer or cancellation of his certificate of registration or on his ceasing to be an assessee. Sub-rule (4) states that no dealer to whom a delivery note is issued by the assessing authority shall either directly or through any other person, transfer the same to another person except as provided in subrule (18) of rule 32. Sub-rule (7) of rule 33A gives power to the Government by notification in the gazette to declare that delivery note of a particular description shall be deemed to be obsolete and invalid with effect from the specified date and sub-rule (8) provides that on such publication all dealers will have to surrender to the assessing authority all unused forms. Thus a reading of rule 33A leads to the conclusion that delivery notes are issued in book form and not given to the dealer on each occasion. Rule 35 is the rule relating to the establishment of check-post and inspection of goods in transit. Rule 35(2) provides that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it appeal judgment revision petition was filed. Exhibit P1 is the revisional order. In the revisional order it is stated that the only basis for the demand of additional security is the allegation of undervaluation by the petitioner. But there was no undervaluation. Therefore, it was decided that there was no justification for demanding additional security. But the Government Pleader submitted that there is an averment in exhibit PI revisional order of the Deputy Commissioner dated July 26, 1990, that from August, 1989, the assessing authority was directing to pay sales tax in advance of the entire purchase of goods and only on payment of the full tax, the petitioner is given delivery note by the assessing authority. That is a factual situation mentioned by the petitioner in exhibit P1. But the Government Pleader submitted that because of that procedure no additional security has been taken from the petitioner and the petitioner itself agreed for paying sales tax in advance before payment of full tax. In this case there is no question of payment of tax for the taxable event, viz., last purchase has not been arrived. The purchase is made within the State and transport has to be ef ..... X X X X Extracts X X X X X X X X Extracts X X X X
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