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TMI Blog2005 (9) TMI 603X X X X Extracts X X X X X X X X Extracts X X X X ..... III as provided under rule 43(7)(j) of the Assam General Sales Tax Rules, 1993, copy of bill/challan No.27 of M/s. Shiva Enterprises, Belsar Nalawadi, Assam, photocopy of registration certificate under the Assam General Sales Tax Rules, 1993, builty No.88, dated July 25, 2005 were filed. The Check-post Officer, appears to have made verification of the goods before issuing transit pass. No difference in the quantity of bags and weights of the scrap was found. However, it is alleged that in the stock, 32 bags of aluminium scrap were found which have not been disclosed and apart from 32 bags of aluminium scrap, 54 bags brass scrap, 100 bags armature scrap, 3 bags radiator scrap, 7 bags mozak scrap, 29 bags steel M.S. scrap were found. On the allegation that 32 bags of aluminium scrap have not been declared, a show cause notice was issued on August 5, 2005. It is stated that one show cause notice was also issued on July 30, 2005 on the ground that in the sale bill of M/s.Shiva Enterprises, Belsar Nalawadi, Assam, bill number has been mentioned by hand and it appears that the bill and builty have been prepared in one handwriting and registration number of purchaser was not mentioned. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in in the prescribed manner an authorisation for transit of goods from the officer-in-charge of the first check-post or barrier after his entry into the State and deliver it to the officer-incharge of the last check-post or barrier before his exit from the State, failing which it shall be presumed that the goods carried thereby have been sold within the State by the owner or person-in-charge of the vehicle: Provided that where the goods carried by such vehicle are, after their entry into the State, transported outside the State by any other vehicle or conveyance, the onus of proving that goods have actually moved out of the State shall be on the owner or person-in-charge of the vehicle. Explanation. In a case where a vehicle owned by a person is hired for transportation of goods by some other person, the hirer of the vehicle shall for the purpose of this section, be deemed to be the owner of the vehicle. Rule 87. The transit of goods by road through the State. (1) The driver or person-in-charge of a vehicle coming from any place outside the State and bound for any other place outside the State shall present the trip sheet in triplicate to the officer-in-charge of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 of List II of the Seventh Schedule; (ii) they infringed freedom of trade, commerce and intercourse guaranteed under article 301 of the Constitution of India; and (iii) imposed unreasonable restrictions on the freedom of trade guaranteed under article 19(1)(g) of the Constitution of India. The honourable Supreme Court has upheld the validity of the provision. The apex court held as follows (at pages 387, 390 and 391 of STC): Para 8. Now the impugned provisions are just machinery provisions. They do not levy any charge by themselves. They are enacted to ensure that there is no evasion of tax. As already observed, the Act is traceable to entry 54 in List II of the Seventh Schedule to the Constitution which reads thus: '54. Taxes on the sale or purchase of goods other than newspapers, subject to the provisions of entry 92A of List I'. It is well-settled that when the Legislature has the power to make a law with respect to any subject it has all the ancillary and incidental powers to make the law effective. Para 9. The provisions of section 28B of the Act and rule 87 of the Rules which are impugned in these cases as mentioned above are just machinery provisions. They im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e entry check-post and to surrender at the exit check-post is to ensure that the goods, which entered inside the State of U.P. had gone outside the State of U.P. and has not been sold inside the State of U.P. The power to seize the goods is only available at the exit check-post when it is found that the transporter is trying to import different goods. Under the aforesaid provisions there is no power to seize the goods at the entry check-post. At the entry check-post if driver of the vehicle applied for transit pass, authority has to verify the goods loaded in the vehicle and mention the name and quantity of the goods sought to be transported through the State of U.P. in the transit pass so that at the entry check-post, the same may be verified at the time of surrendering the transit pass. I have perused the order of Tribunal and the authorities below and also records of the case. I do not find any error in the order of the Tribunal. The present case is a patent case of arbitrary seizure on the part of the Check-post Officer, which had been illegally confirmed by the Deputy Commissioner, Check-post, Trade Tax, Kushi Nagar. Admittedly, Bill No.27, dated July 25, 2005 was for 22 ..... 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