9911796707
TMI Blog2007 (3) TMI 678X X X X Extracts X X X X X X X X Extracts X X X X ..... k-post, Dhabla Jodi, Khilchipur, in District Rajgarh (M.P.). The Check-post Officer found that the documents in relation to the JCBs were not in order and, therefore, issued the prescribed show cause notice for payment of tax together with penalty under the provisions of the M.P.Commercial Tax Act, 1994 (hereinafter referred to as, the Act ). The petitioner appeared before the Check-post Officer and represented to him that the machines were being sent to Harda in Madhya Pradesh, on rental basis and not for sale and, therefore, there was no case of evasion of tax. The Check-post Officer, however, did not accept the petitioner's contention and vide order dated October 22, 2005, he imposed the penalty in respect of each JCB detained at the check-post. The petitioner challenged these orders before the Commissioner, under section 62 of the Act, but the revision was dismissed. It was in this context that the petitioner challenged the orders dated January 23, 2006 and October 22, 2005 and the demand made vide notice dated October 23, 2005. The learned single judge observed that in the absence of the documents, the Check-post Officer rightly initiated action provided under the law and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such manner as may be prescribed, check-posts or barriers at such places in the State, excluding railway premises, as may be notified: Provided that the Commissioner shall not set up a check-post or erect a barrier for a period exceeding six months at time. (2) to (3) . . . (4) Every person transporting such goods as may be notified by the State Government in this behalf (hereinafter referred to in this section as the transporter) shall carry with him an invoice, bill or challan or any other document, by whatever name called, issued by the consignor of the goods giving such particulars as may be prescribed. (5) to (5-A) . . . (6) . . . (7) If the Check-post Officer finds after searching the vehicle and verifying the declaration or other documents relating to the goods, that (a) goods notified under sub-section (4) are being transported in respect of which the transporter has not filed any declaration, or (b) the declaration filed in respect of any goods is false or incorrect, either in respect of the kind of goods, or the quantity of goods transported, or the value thereof, or (c) consignor or the consignee of the goods is shown to be a dealer regi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transporter is not carrying the documents or the documents being a carried are not in order or the transporter is not carrying a copy of the declaration, he may direct the transporter to take the vehicle along with the goods and the documents to the nearest check-post or any Commercial Tax Officer to be named by him and stop it and keep it stationary there till such time as may be required for action in accordance with the provisions of section 45A. From the above provision it is manifest that if the officer taking action finds on inspection of the bill that the transporter is not carrying the documents or the documents being carried are not in order, he may direct the transporter to take the vehicle along with the goods and the documents to the nearest check-post or any Commercial Tax Officer to be named by him and stop it and keep it stationary there till such time as may be required for action in accordance with the provisions of section 45A. Learned counsel for the appellant submits that once it is clear that the provisions of section 45A have been incorporated for taking further action, sub-section (7) of section 45A of the Act becomes operative and, therefore, unless any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 45A. From sub-section (4) of section 45D it is luculent that the satisfaction that is derived is on the basis of sub-section (4) of section 45D and not in accordance with either sub-section (1) or sub-section (4) of section 45A of the Act. The reference to section 45A is a reference only to its machinery provision and not the substantive requirement contained therein which is attracted in altogether a different sphere. We are, therefore, of the considered view that once the satisfaction is derived under sub-section (4) of section 45D of the Act, then for the purpose of taking action, reference can be made to sub-section (7) of section 45A. Clause (b) of sub-section (7) relates to the declaration filed in respect of any goods which is incorrect either in respect of the kind of goods or the quality of goods transported or the value thereof and provides for a presumption, until contrary is proved, that an attempt was being made to facilitate the evasion of tax in respect of such goods. It proceeds to grant further power of seizure of the goods or the vehicle along with the goods in such manner as may be prescribed. The provisions following subsection (7) also refer to the manne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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