Champalal Jain vs Deputy Commercial Tax Officer, Esplanade II Division

Madras Ramaprasada Rao, J.—A notice dated 12th July, 1969, was issued by the Deputy Commercial Tax Officer, Esplanade II Division,

Madras, stating that the petitioner has committed an offence punishable u/s 45(2)(d) of the Tamil Nadu General Sales Tax Act, 1959 (hereinafter

referred to as the Act). He was given an option to compound the offence by paying a sum of Rs. 1,000. The petitioner, for the first time, attempted

to pay the amount by cheque, but under protest. This was not received. In those circumstances, the petitioner was obliged to pay the said sum of

Rs. 1,000 in cash and take back the goods which were detained at the check post. With this background, the petitioner has filed this petition for

the issue of a writ of mandamus directing the respondent to refund the said sum of Rs. 1,000 so collected from him.

The short facts are as follows : The petitioner is a registered dealer both under the Tamil Nadu General Sales Tax Act as well as the Central

Sales Tax Act. On 12th July, 1969, he was removing certain brass sheets and circles weighing about 2 1/2 tons manufactured in his factory at

Basin Bridge called ""M/s. Mahaveer Metal Industries"" to his godown at No. 83, Mulla Sahib Street, Madras-1. In the course of transit from the

place of manufacture to the godown of the petitioner, there was a check post. On a check made, as usual, by the Check Post Officer, there was

no delivery note in Form No. XX as prescribed in the Act and, therefore, the Check Post Officer was of the view that the petitioner contravened

Section 44 of the Act and in consequence, committed an offence punishable u/s 45(2)(d) of the Act. It was in this context that the notice referred

to by me earlier was issued.

As already stated, the petitioner paid the amount more or less under protest in order to remove his goods detained at the check post; and

without exhausting his alternative remedy by filing a revision petition against the order in question to the Deputy Commissioner of Commercial

Taxes u/s 32 of the Act, he has come to this court for the relief aforesaid.

In order to verify whether the facts pleaded by the petitioner were true, I called upon the petitioner to produce the relevant documents in

evidence of his plea that the goods were being transported from the place of manufacture to his godown and that they were never intended for

sale"" at the moment when they passed the check post, nor did they move pursuant to a ""contract of sale"". On verification in court in the presence

of the learned Government Pleader it is seen that the petitioner''s factual contention appears to be correct. If this is so, it is doubtful whether in such

circumstances and having regard to the record in this case, an offence u/s 44 of the Act has been committed at all. In my view, the petitioner has

not transgressed any provision of law.

If it is discovered that while a person is transporting goods touching a check post en route and if such transport is merely to house the

manufactured goods in the godown of the manufacturer and if that is established by clinching and acceptable evidence, then it cannot (sic) be said

that neither Section 44 of the Act nor the prescriptions therein have been transgressed. Section 44, though not expressly, by necessary implication,

deals with a situation where the goods carried by the relative vehicles are subject to a ""sale"" or are intended for delivery pursuant to a sale. This

appears to be clear from Section 44(1) of the Act. This sub-section says that the owner or the other person, in charge of the goods vehicle shall

carry with him a bill of sale or delivery note. The former implies that there was a prior sale which occasioned the movement and the latter

presupposes that there was a purchase from a vendor. In any event, this sub-clause would apply only in a situation where the goods are in the

course of transit pursuant to a sale or purchase of goods. It is in this context that I made the observation as above, viz., that if the transit is only for

the purpose of depositing the manufactured goods of the dealer in his godown for custody, then, in such circumstances, it cannot be assumed that

there was a prior ""sale"" or a ""purchase"", as is popularly understood, which would compel the owner or the person in charge of the goods vehicle to

present a bill of sale or delivery note to the Check Post Officer. It was not possible, in the instant case, for him to do so, because, the goods were

not subject to sale or purchase either at the time they started movement or at the time they were checked by the checking officer at the check post.

In the instant case, the facts supported by record establish that there was no such sale or purchase of the goods sought to be transported on the

relevant date.

I am not, however, inclined to issue the rule at this stage, because, the position was not approached from this angle by the checking officer. I am

inclined to direct the petitioner to file a regular revision petition before the Deputy Commissioner of Commercial Taxes u/s 32 of the Act who shall

entertain the revision without rejecting it on the ground of delayed presentation and deal with it in accordance with law and in the light of the

observations above made. The revision petition shall, however, be filed by the petitioner within two weeks from this date. In view of the pendency

of this writ petition in this court and as the petitioner is entitled to relief, the Deputy Commissioner of Commercial Taxes will take up the revision as

and when it is filed and dispose of the same within two months from the date of such filing.

With the above directions, this writ petition is dismissed. No costs.