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TMI Blog2004 (9) TMI 607X X X X Extracts X X X X X X X X Extracts X X X X ..... or detention of the vehicle involved for a period of thirty days. The impugned section introduced to the Act with effect from April 1, 2000 is extracted hereunder for easy reference: "45B. Penalty for transport of goods without records. (1) If any officer empowered under sub-section (1) of section 29A finds on inspection of any vehicle or vessel that any transporting agency or contract carriage transporting any goods without the documents required under sub-section (2) of section 29, such officer may without prejudice to any action that may be taken under section 29A, impose by an order in writing on such transporting agency, or contract carriage, or the owner of the vehicle a penalty equal to twice the amount of the tax due on such goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... List to the Seventh Schedule to the Constitution of India which authorises the State Legislature to make law for levy of tax on sale or purchase of goods does not give authority to the State Legislature to enact section 45B affecting public carriers who are exclusively governed by Parliamentary law for public carriers, made under entry 7 of the Concurrent List. The specific contention of the petitioners is that section 45B is a colourable piece of legislation because bailment is covered by the provisions of the Contract Act and the Carriers Act, which do not provide for any such penalty and therefore section 45B has to be declared as unconstitutional, by virtue of operation of article 251 of the Constitution of India. The Special Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rriers to get themselves registered, maintain accounts of goods transported and to furnish declaration forms relating to consignments. The Supreme Court held that the objective of these provisions is to seal loopholes of avoidance of sales tax and are within the legislative competence of the State Legislature. It is to be noted that similar provisions as in Tripura Act are in Kerala whereunder transporting agencies are liable to file return in terms of section 32 of the Act read with rules 57 and 58 of the KGST Rules, 1963 which prescribed form Nos. 44 and 45 to be submitted by the owners of vehicles and transporting agencies periodically. Strangely petitioners have no challenge against these provisions which are in the statute for long o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 401, the decision of this Court in Sunitha Diesel Sales Services v. State of Kerala [1996] 102 STC 448; (1996) 2 KLT 571, I do not think section 45B can be declared unconstitutional or beyond the powers of the State Legislature based on these decisions. Therefore, the challenge against the constitutional validity of the section is only to be rejected and I do so. 3.. Petitioners have pointed out that levy of penalty under section 45B is in addition to penalty provided under section 29A of the Act on the owner of the goods who evades tax. Therefore according to the petitioners there is double penalty for the same transaction that is evasion of tax in respect of the same goods. Even though there is some substance in the contention of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the petitioners. 4.. The next contention raised by the petitioners is against subsection (2) of section 45B for detention of vehicle for 30 days in addition to penalty in case of repeated offence. The provision itself shows the legislative intention is to prevent evasion of tax and unless deterrent punishment is provided, the objective cannot be achieved. In every statute higher penalty is provided for repeated offence and I do not think the provision for higher penalty for repeated offence of transporting goods without documents can be termed as arbitrary or illegal. In the circumstances original petitions and writ petition are devoid of any merit and they are dismissed. Petitioners are given three weeks' time from now to challe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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