LexTHE CHECK POST OFFICER & ORS. versus K. P. ABDULLA BROS.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
A
c
D
E
r
817
THE CHECK POST OFFICER & ORS.
v.
K. P. ABDULLA.BROS.
November 23, 197()
[J. C. SHAH, G. K. MITTER, K. S. HBGDE, A. N. GROVER
AND A. N. R.<\.Y, JJ.]
Madras General Sales Tax Act, 1959--Section 42 sub-section (3)-
Power to confiscate all goods and levy penalty in lieu at check post-If
ancillary or incidental to legislate on taxes on the sale or purchase of
goods-Constitution of India, Seventh Schedule, List //, Entry 54-lnter-
pretat{on of entries.
· By sub-s. 3 of s. 42 of the Madras General Sales Tax Act, 1959, tlut
oflicer-in-charge of a checkpost or barrier has the power to seiz.e and con-
fiscate any goods _which are being carried in any vehicle if they are not
covered by the documents specified in the three sub-clauses.
On the question whether the power to confiscate goods· and to levy
penalty in lieu of confiscation, when in respect of the goods found in a.
vehicle the driver of the vehicle is not carrying with him the documem
specified therein, is a provision which is ancillary or incidental to tbe-
power to legislate in respect of taxes on the sale or purchase of goods in
entry 54 of List II of the Seventh Schedule to the Constitution,
HELD : A taxing entry confers power upon the legltlature to legislate-
for matters ancillary or incidental, including provisions far preventinJ
evasion elf tax. But the pow~r conferred by sub-section (3) to seize and
conllscate and to levy penalty in respect of all goods ·which are carried in
. a vehicle whether the goods are sold oc not is not incidental oc. a.ncilla?Y
to the power to levy sales tax. [819 H-820 B; 820 E]
Commissioner of Commercial Taxes & Ors., v .. R, S. Jhevar & Ort .•
(1968] I S.C.R. 148, held inapplicable.
· United Provinces v. Mst. Atiqa Begum & Ors., [1940] F*.R. 110;:
Navinchandra Mafat/al v. Commissioner of Income-tax, Bombay City,
· (1955] I S,C.R. 829 a.nd Balaji v. Income-tax Officer, Special lnvestigatlon-
Circ/e; [1962] 2 S.C.R. 983, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 2012:
G and 2013 of 1969.
Appeals from the judgniont and order dated September 23,
1968 of the Madras High Court in Writ Appeals Nos. 106 and
107 of 1968. ·
H
A. K. Sen and A. V. Rangam, for the appellants (in both theo
appeals).
T. A. Ramachandran, for the respondent (in both the appeals}
!0-L694SupCI/71
.
'
818
SUPREME COURT REPORTS
[1971]2 s.c;R.
The Judgment of the Court was delivered. by
Shah, J.
Motor Lorry No. K.L.R. 391Q, driven along a high-
way from Coimbatore in the State of Madras towards the border
of the State of Kerala was when searched by the. Check P()st
Officer found to carry 85 bags of foodstuffs-45 bags of maida,
A
20 bags of flour and 20 bags of Khandsari sugar. The driver of
8
the motor lorry was found to carry with him a bill of .sale and a
delivery note which covered .85 bags of flour.
On the ground
that without a bili of' sale or delivery note maida and Khandsari
sugar were attempted to be transported. and suspecting that there
was an attempt at evasion of sales-tax, the Check Post Officer
by order dated March 2, 1965, confiscated the goods and gave an
C
option to Ml&. K. P. Abdulla & Bros. the owners of the .goods
to pay Rs. 1,000 as penalty in lieu of confiscation.
·
The owners of the goods then moved a petition in the High .. ·
Court of Madras challenging the validity of s. 42(3)(a) of tl!e·
.Ma,dras General Sales Tax Act, 1959, and for an order quaSh- .
~"!·
ing the penalty, and another petition for a direction to the State 6.
ot::~Wlra~ 1'nd the Check Post Officer to return the goods seiz·
ed and "confiscated while in transit". Ramakrishnan, J., rejected
the petitions.
In appeals filed by the owners, the. petitions were
allo).\'cd and the orders imposing pP.nalty and confiscation of goods
were set aside. The State of Madras has appealed to this Court
with certificate granted by the High Court.
E
Section 42 of the
Madras General Sales Tax Act,
1959,
provides:
" ( 1) If the Government consider that with a view
to prevent or check evasion of tax under this Act in any
place or places in the State, it is necessary so to do,
they may, by notification, dirP.ct the setting up of a
check post or the erection of a barrier or both, at such
place or places as may be notified.
"(2) At every check post or barrier mentioned in
sub-section ( 1), or at any other place when so requir-
ed by any officer empowered by the Government ·in
this behaExcerpt shown. Read the full judgment & AI analysis in Lexace.