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TMI Blog2008 (7) TMI 881X X X X Extracts X X X X X X X X Extracts X X X X ..... 28899 of 2003 - - - Dated:- 7-7-2008 - ARUN MISHRA AND SHRIVASTAVA S. , JJ. The judgment of the court was delivered by ARUN MISHRA J. The petitioner has prayed for the relief in the instant petition to declare section 45A of the M. P. Commercial Tax Act, 1994 as ultra vires and quash notice (P4) issued in form No. 76 dated December 9, 2003 and the penalty imposed as per order under section 45A(12) of the Commercial Tax Act dated December 10, 2003. Prayer has also been made to direct the respondents to release the vehicles. Further prayer has been made that provision of section 45A of the M.P. Commercial Tax Act, 1994 cannot be invoked while the goods are being transported into the State of M.P., by way of sale or purchase or by way of consignment of goods in the course of inter-State trade or commerce or when the transportation of goods is not pursuant to or in the course of any sale taking place in the State of M.P. The petitioner has submitted that the petitioner is a company involved in the business of manufacture and sale of cigarettes and smoking mixtures. The company has entered into an agreement with Reliable Cigarette and Tobacco Industries, Mandi Deep, Bhop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of goods transported, quantity and its value before allowing the vehicles to pass through the check-post. If any discrepancy is found or it is apprehended by the check-post authority that there is possible tax evasion then check-post authority is authorised to detain the vehicle and in absence of proper form No. 75 the goods vehicle may be seized, a show-cause notice for imposing the penalty may be issued and after obtaining necessary clarifications if the check-post authority is not satisfied in that case penalty is imposed under section 45A(12) of the Commercial Tax Act, 1994. In this case the cut tobacco is not subject to tax since it is liable for payment of additional excise duty. The cut tobacco is a perishable item. The check-post authority therefore has acted in violation of the provisions contained in section 45A of the Commercial Tax Act. It is submitted that in show-cause notice issued in form No. 76 the Check-post Officer has alleged that the buyer of cut tobacco is RCT whereas RCT is an additional place of business of the petitioner as a job-work contractor for manufacturing of cigarettes. The goods consigned to RCT at no point of time belongs to RCT. The RCT under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the Entry Tax Act, 1976. With specific reference to section 13 of the Entry Tax Act details that certain sections of the Vanijyik Kar Adhiniyam and the Rules made and orders and notifications issued thereunder shall mutatis mutandis applied to a dealer or person in respect of entry tax levied and payable under the Act as if these sections were mutatis mutandis incorporated. Section 45 of the Commercial Tax Act is also included under the provisions of the Entry Tax Act. Cut tobacco is notified goods as per notification dated May 6, 2002. Notification came into force with effect from 2002. Facts have also been disputed by the respondents. They have contended that on November 29, 2003 a truck bearing No. MOD-6468 was stopped and thereafter the remaining 3 trucks carrying cut tobacco were stopped at the check-post on December 7, 2003 by virtue of notification dated May 6, 2002 and powers envisaged thereunder. It was found that the truck bearing No. MOD-6468 carried form No. 75 in the name of ITC Limited, Plot No. 8, 3rd Floor Ranjeet Tower, Zone 2, M.P. Nagar, Bhopal bearing TIN No. 23174001316 (i.e., the tax identification number). Only the person to whom the form No. 75 is issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Act has already been upheld by this court in Buildworth Private Ltd. v. Sales Tax Officer [1997] 106 STC 365; [1996] 29 VKN 482. It is submitted that if the goods were being transported for head quarter, Saharanpur then there was no need for the petitioner to submit declaration form No. 75 in which the delivery point was mentioned ITC Ltd., Bhopal, whereas in other papers which were seized from the truck it was found that delivery point was shown as Reliable Cigarettes and Tobacco Industries, Mandideep, Bhopal, as apparent from document (RA 2 and RA 3) that the petitioner had intention to evade the payment of tax. Petition is premature, only show-cause notices have been issued. Shri G.N. Purohit, learned Senior Counsel, has submitted that section 45A of the Commercial Tax Act is ultra vires as it put a fetter as per inter-State trade and tends to levy excise on production, it authorises to intercept the vehicle on which tax could not be realised under the Commercial Tax Act. The goods were in the process of manufacture, consequently, it was not open to take action under section 45A of the Commercial Tax Act, 1994. He has also submitted that in section 13 of the Entry Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . v. Sales Tax Officer [1995] 28 VKN 202. The aforesaid provision is also pari materia to the provision of the U.P. Act which was considered by the apex court in Sodhi Transport Co. v. State of U.P. [1986] 62 STC 381 the vires of the similar provision was upheld. We are bound by the decision of the apex court and the aforesaid two decisions rendered by the Division Bench of this court. In Check-post Officer v. K.P. Abdulla and Bros. [1971] 27 STC 1 (SC) scope of matters ancillary or incidental to the power to impose sales tax was examined. In the instant case provision of the Commercial Tax Act as well as Entry Tax Act comes into play and it is not disputed that the entry tax is liable to be paid. Consequently, liability to pay entry tax is not disputed. It is also not disputed that in case goods have been sold within the State of M.P., transaction would be liable to Commercial Tax Act. Thus, in our opinion, the decision in Check-post Officer v. K.P. Abdulla and Bros. [1971] 27 STC 1 (SC) was rendered in different context and provision of section 45A of the M.P. Commercial Tax Act cannot be declared ultra vires on the strength of the aforesaid decision, particularly, in view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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