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TMI Blog2001 (7) TMI 1257X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court in the case of Tripura Goods Transport Association v. Commissioner of Taxes [1999] 112 STC 609. Contention advanced by the learned Advocate-General for the State is that division Bench decision of this Court in the case of J.K. Corporation Limited v. State of Gujarat [1995] 99 STC 226 needs reconsideration in view of the decision of the Supreme Court in Tripura Goods Transport Association case [1999] 112 STC 609. The present cases have, therefore, been placed before this Full Bench. 4.. The impugned provision of section 59AAA reads as under: "59AAA. Power to declare specified goods.-(1) Where the State Government is of opinion that tax is or is likely to be evaded on sales or purchases of goods which take place in the State subsequent to their import from other State and that with a view to preventing such evasion, it is necessary so to do, it may by notification in the Official Gazette, specify such goods (hereinafter referred to as 'the specified goods'). (2) A registered dealer or any other person who intends to import specified goods from any other State for sale, use, consumption or any other disposal in the State, shall make a declaration in such form as ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng or for generating or distributing the electricity or any other form of power, or (iv) for use in packing of goods for sale, or (v) for sale by way of execution of works contract; or (b) receives any goods consigned to him from outside the State for any of the purposes mentioned in sub-clauses (i) to (v) of clause (a), he shall make a declaration in form 45C. The counterfoil of the declaration shall be retained by the importer and its portions marked 'original' and 'duplicate' shall be produced before the officer in-charge of the entry check-post who shall retain the 'original' portion and return the 'duplicate' portion duly sealed and signed in token of having verified it to the person producing it; and such officer shall send the retained 'original' portion of form 45C to the Sales Tax Officer concerned. (2) The registered dealer shall submit a statement of import of specified goods in form 45D along with the 'duplicate' portion of form 45C to the assessing officer within fifteen days from the last day of the month. (3) Form 45C may be obtained by the importer from the Sales Tax Officer having jurisdiction, over the area within which the registered dealer carries on h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . No.............. Date of issue............... Name of the office of issue.............. Seal of issuing authority To The officer-in-charge of the check-post or barrier. Declared and certified that the goods particulars of which are given below have been imported by me/us or have been consigned to me/us from outside the State for sale or for use in the manufacture or processing of goods or for sale or for use in the mining or in generating or distributing the electricity or any other form of power or for use in packing of goods or for sale by way of execution of works contract, and hold myself/ourselves liable for payment of tax as per the Gujarat Sales Tax Act, 1969 to the Government, on the sales thereof. (1) (a) Name and complete address of the State consignor............... (b) Certificate of Registration No. of the consignor: (i) under the Sales Tax Act........................(mention the name of the State).............................. (ii) under the Central Sales Tax Act, 1956.................... (2) Nature of transaction- (a) Consignment; (b) Depot transfer; (c) Inter-State sale/purchase; (d) Any other nature. (3) (a) Name and complete addre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate trade and commerce guaranteed under article 301 of the Constitution of India. It is also contended that imposing by law such obligation on the importer along with transporter to furnish all information regarding "specified goods" imported and make declaration before the entry of goods at the check-post is beyond the legislative power of the State. The goods imported from outside State in the State of Gujarat cannot be subjected to sales tax under the provisions of the Gujarat Sales Tax Act. If at all they are to be subjected to Central sales tax under the Central Sales Tax Act, the taxing authorities would be those in concerned States from where the goods are exported. Learned Senior Counsel Mr. R.D. Pathak and Mr. K.H. Kaji appearing in the present two cases for the petitioners contend that similar provisions and form 45C were struck down by this Court in the case of J.K. Corporation Limited [1995] 99 STC 226, after rejecting the stand of the State Government that such provisions are necessary to check and prevent evasion of sales tax on "specified goods" imported in the State. The submission made is that there is clearly an attempt on the part of the State Legislature to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r or consignor and the transporter. The transporter is separately required in accordance with Rule 62A to furnish separate declaration in prescribed form 45A. 9.. On behalf of the petitioners, serious objection is also raised to clause (f) of rule 24B of the Rules which, inter alia, lays down condition to be fulfilled for obtaining prescribed forms from the registering authority. Clause (f) of rule 24B reads as follows: "The applicant should further satisfy the registering authority that purchases made on the strength of the respective certificates have been accounted properly in regular books of accounts and resales of the goods purchased or sales of manufactured goods out of the goods purchased on the strength of such certificates are also accounted properly in regular books of accounts and resales of the goods purchased or sales of manufactured goods out of the goods purchased on the strength of such certificates are also accounted properly in regular books of accounts and tax due and payable as per the provisions for these purchases, sales and resales has been fully paid within the prescribed time-limit." A perusal of clause (f) of rule 24B shows that before issuance of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt manufactured within the State and outside State, large scale illicit trade in cement by importers was going on. Such unaccounted cement imported in the State was clandestinely sold, used and consumed within the State without source of identification of such imported goods with the department. The provisions introduced in the Act, Rules and forms by amendment is with the purpose to identify consignees, consignors and transporters of goods to subject imported articles to leviable tax within the State or in the State from which goods are exported. It is submitted that legal flaw or want of source of power in the Act, which was noticed by the division Bench in the case of J.K. Corporation Limited [1995] 99 STC 226 (Guj) has been removed by incorporating specific provision of section 59AAA in the Gujarat Act which is legally permissible course for the State Legislature. The amended provisions of the Act and the Rules with the form prescribed thereunder now do not suffer from any constitutional or legal infirmity and the provisions have benevolent purpose of checking and preventing evasion of tax by identifying consignees, consignors and transporters of imported specified goods. 11. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e import. Similar requirement is already there to be fulfilled on the part of transporter as required by rule 62A and form 45A. Such requirement of giving similar information and declarations is to be found in sales tax laws in many other States like Rajasthan, Uttar Pradesh and Tripura. The Supreme Court in the case of Tripura Goods Transport Association [1999] 112 STC 609; AIR 1999 SC 719 upheld such provisions, rules and forms as are made applicable to transporter. When such provisions are made applicable to actual importer, there is greater reason for the court to uphold the same because liability to pay tax is on the exporter or importer and not on the transporter. If transporter is held liable to give information and make declaration at the check-post at the time of import of goods, more so, such liability can validly be imposed on the exporter or importer. There is, therefore, no illegality or constitutional infirmity in any of the provisions, rules or forms. 13.. We have considered various submissions made by the learned counsel for the petitioners and the learned Advocate-General for the State. We do not find any constitutional infirmity in the impugned provisions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound to be a cause of large scale illicit trade in cement. The State, therefore thought it necessary to enact provisions to check such illicit trade and evasion of tax. The impugned provisions of the Act and Rules impose reasonable restriction in public interest within the meaning of article 302 of the Constitution of India. The impugned provisions do not directly impede or restrict free-flow of inter-State trade and commerce. They only indirectly restrict trade to regulate collection and to check evasion of tax. They cannot be described as unreasonable restrictions under article 302 of the Constitution. Restrictions such as those imposed by the impugned provisions requiring importer to give in prescribed form full information, particulars and declaration of the goods sought to be imported in the State of Gujarat do not directly obstruct free-flow of inter-State trade, commerce and intercourse and hence are unassailable on grounds based on article 12, 19 or 301 of the Constitution. 17.. Certain provisions which, on experience, have been found, if not impossible but difficult and burdensome of performance in practical situation or realities of trade and business, have fairly bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate, orally and in writing, it has been stated that importer can make a declaration to the extent he is possessed of such information. In not filling column Nos. (6), (11) and (12) in form 45C, goods shall neither be detained nor importer shall be penalised. It has also been agreed on behalf of the State and its authorities that particulars and details in respect of column Nos. (6), (9), (11) and (12) can be filled on the basis of the declaration contained in form 45A which is to be made by the transporter. Importer is required to make a declaration about the particulars of which he possesses knowledge and information. 19.. The impugned provisions of the Rules and forms as read down in the manner sought to be done on behalf of the State, would not offend any of the provisions of the Constitution and are liable to be upheld. They are necessary and are regulatory in nature for preventing evasion of tax. 20.. Rule of reading down statutory provision is well-recognised rule of interpretation. For avoiding striking down of statute of rule on curable constitutional or legal vice, this rule of reading down statute or rule to harmonise it with general scheme of the Act and the Rules, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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