V. S. DESHPANDE, J.

( 1 ) THE Terminal Tax Agency demanded from the petitioner on 23-7-1973 terminal tax of Rs. 157. 38 leviable on the goods brought into Delhi by the petitioner. The goods had been previously seized as having been brought into the Union territory of Delhi without payment of terminal tax. A penalty of ten times the amount of terminal tax was also, therefore, demanded from the petitioner. On failure to pay the tax and the penalty within five days, the petitioner was told that the goods would be sold at its risk and responsibility. The legality of the demand of the tax as well as the penalty is challenged by the petitioner under the following circumstences. TAX

( 2 ) UNDER Entry 52 of List II of the Seventh Schedule of the Constitution, a State legislature is competent to legislate about "taxes on the entry of goods into a local area for consumption, use or sale therein". Under Article 246 (4) of the Constitution, Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List. Apparently, in exercise of this power, Parliament enacted section 170 to 183 in chapter VIII of the Delhi Municipal Corporation Act, 1957 (hereinafter called the Act) relating to taxation. The rates of the terminal tax on the different kinds of goods are specified in the Tenth Schedule to the Act. Under section 178 (1) terminal tax is leviable on all goods brought into the Union territory of Delhi at the rates specified in the Tenth Schedule. Under section 179 (1) the taxes shall be collected by the Central Government in such manner and through such agency as may be specified. The Government of India notification dated 7th April 1958 thereunder notified that the terminal tax levied under section 178 shall be collected by the Central Government in accordance with the rules made under section 183 of the Act through the agency of Commissioner, Municipal Corporation of Delhi and such agency shall bedesignated as the "delhi Terminal Tax Agency". The Delhi Terminal Tax Rules, 1958 empowered the Terminal Tax Agency to appoint Terminal Tax Officer and other staff to collect the terminal tax. to seize the goods if the tax is not paid and to sell the goods for the recovery of the amount of the tax. Section 182 of the Act says that every person authorised under the provisions of the Act and the Rules made thereunder shall have, in respect of the collection of such tax and of the confiscation of goods in connection therewith, some powers as are conferred by any law for the time being in force on the Collector of Land Customs, Delhi. The power to confiscate the goods has not, however, been used against the petitioner in the present case.

( 3 ) THERE is a dispute between the parties as to the nature of the goods brought into Delhi by the petitioner. According to the petitioner, they were empty gas cylinders. According to the Terminal Tax Agency (Respondent 2) they were fire extinguishers. The former are exempted from payment of tax while the latter are chargeable to tax. The petitioner has obtained possession of the seized goods from the respondents immediately after the filing of the writ petition. It is not known how the petitioner has disposed of the goods. This Court is not, therefore, in a position to decide on the nature and the contents of the goods. It is a disputed question of fact between the parties which cannot be decided without oral evidence and is not, therefore, suitable for decision by this Court. Secondly, the primary jurisdiction for deciding the nature and the contents of the goods has been conferred on the Terminal Tax Agency by the Delhi Terminal Tax Rules which lay down a complete procedure for inspection of the goods, for examination of the goods, for making seizure and confiscation of the goods and for recovery of the tax. Lastly, any person dissatisfied with the assessment of terminal tax on his

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