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SUPREME COURT OF INDIA
G.L. OZA AND K.N. SAIKIA, JJ.
State of Bihar and others, Appellants
Versus
Harihar Prasad Debuka etc., Respondents.
Civil Appeals Nos. 346-347 of 1988
Decided on 21-2-1989.
Constitution of India,1950 – Article 226,227,301,304,303 and 32 - Bihar Finance Act, 1981- 31(2-A) - Central Sales Tax Act, 1956 – Section 15 - U.P. Sales Tax Act, 1948 - Section 28B - U.P. Sales-tax Rules, 1948 - Rule 87 - Special leave - Transporting goods - These appeals by special leave are from a Full Bench judgment of High Court in two writ petitions under Arts. 226 and 227 of Constitution of India allowing petitions and quashing the Bihar Governments Notification as violative of Arts. 301 and 304 of Constitution of India - Person transporting goods shall carry a declaration in such form as may be prescribed by commissioner supported by either a cash memo, bill or a challan, in case movement is otherwise than as a result of sale, in respect of goods which is being transported on a goods carrier, or a vessel and shall produce such challan, cash memo or bill along with aforesaid form of declaration on demand before prescribed authority Whether it amounts to a prohibition or a mere regulation? - Whether tax would be payable in latter category – Held, They are to be filled up only when carrier is within territory of the State of Bihar - There is no provision to effect that those who had not filled up appropriate form at earlier stages of transit would not be allowed to fill up within the State - Particulars required are not such as would be impossible or difficult for the carrier to furnish - There is no prohibition on transportation of the goods themselves – Court are accordingly of view that there is no direct and immediate restriction of inter-State trade, commerce or intercourse as a result of requirement to fill up and carry the Forms - Checking of documents or filling in and submission of Forms and returns, detour to a public weigh-bridge and like may be an inconvenience, and unless they are shown to be unreasonable and not in public interest court may apply the maxim de minimis non curat lev stoppage of vehicle for roadside repair for taking petrol, for allowing the driver to take rest or his meals would not naturally amount to interruptions of trade, commerce and intercourse - In this view of the matter this case would squarely be covered by decision in Sodhi Transport Co. (AIR 1986 SC 1099) (supra) - Court accordingly hold Notification and adoption of Forms to have been validly made in exercise of powers incidental to the power of levying Sales Tax, and that they are reasonable and in public interest, and not ultra vires the Articles 301 and 304 of the Constitution of India - In the result, impugned judgment of High Court is set aside, and appeals are allowed, but without any orders as to costs - Learned counsel for appellant states that the State in these appeals was interested in the law being laid down, and that even if the validity of the Notification is upheld it will not revive the proceedings against the respondent to realise the penalty - Court have no doubt that State will abide by it - Appeals allowed.
JUDGMENT
K. N. SAIKIA, J.:— These appeals by special leave are from a Full Bench judgment of the Patna High Court* in two writ petitions under Arts. 226 and 227 of the Constitution of India allowing the petitions and quashing the Bihar Governments Notification No. S.O. 1432 dated 28th December 1985 as violative of Arts. 301 and 304 of the Constitution of India.
* Reported in AIR 1987 Pat 175 (FB).
2. Sub-section (2-A) of S. 31 of the Bihar Finance Act, 1981 was substituted by Bihar Finance Act, 1984 as follows :-
"(2-a) A person transporting goods shall carry a declaration in such form as may be prescribed by the commissioner supported by either a cash memo, bill or a challan, in case the movement is otherwise than as a result of sale, in respect of goods which is being transported on a goods carrier, or a vessel and shall produce such challan, cash memo or bill along with the aforesaid form of declaration on demand before the prescribed authority :
Provided that the Commissioner, by notification in this respect, may prescribe a for of declaration or adopt a form of declaration or permit prescribed for the purpose of Ss. 34 and 35 of this part, and, he may also prescribe, in the said notification, or the manner in which such declaration or permit shall be utilised for verification and assessment of tax payable under this part:
Provided further that the Commissioner may exempt any person or dealer or class of registered dealers from the requirement of this sub-section."
3. Under the aforesaid amended provision the following Notification was issued :-
The 28th December 1985.
S.O. 1432.- In exercise of the powers conferred by sub-sec. (2-a) of S. 31 of the Bihar Finance Act, 1981 (Bihar Act 5 of 1981) Part I, the Commissioner adopts Form XXVIII A and XXVIII B as the declaration for the purpose of the aforesaid sub-section which a person shall carry in respect of goods being transported for the purposes of verification and assessment of tax payable and prescribes the following manners in which such permit shall be utilised for verification and assessment of tax payable under Part I of the said Act:
(i) A person transporting goods, exceeding the quantity notified under S. 35, on a goods carrier or a vessel shall carry Form XXVIII A or XXVIII B duly filled up in respect of goods being brought into the State or being sent out of the State;
(ii) In case a form is found blank, or not containing all the particulars, it shall be deemed to be a violation of the provisions of sub-sec. (2-a) of S. 31 of the said Act.
(iii) The prescribed authority, after verification of the consignment, shall make appropriate endorsement in respect of the result of verification on both the copies/counterfoils of Form XXVII A or XXVIII B, as the case may be, and retain one copy of original counterfoil and return the other copy or duplicate counterfoil to the person transporting the goods;
(iv) The copy of the original counterfoil retained by the inspecting authority shall be forwarded for verification and for assessment of tax to the circle in which the dealer is registered or has his place of business;
(v) The concerned dealer shall preserve the other copy or duplicate counterfoil of Form XXVIII A or XXVIII B, as the case may be, for production before the assessing authority or for inspection at any time before or after the assessment.
2. This notification shall come into force with effect from the 1st January, 1986.
/Bikrikar/vividh/121-308-85
By order of the Governor of Bihar
MUKUND PRASAD
Commissioner of Commercial Taxes
and Special Secretary to Government."
4. The respondent as proprietor of M/s. Jai Durga Industries of Jamshedpur town, which was registered under the Bihar Sales Tax Act and the Central Sales Tax Act, purchased 165 bags of mustard (sarso) from M/s. Kanpur Chand Girish Chand Jain at Dhaulpur, in the State of Rajasthan, and was transporting the same therefrom to Jamshedpur in the State of Bihar in Truck No. RSG 533. On the 13th of February, 1986, the officer
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