C.N. Ramachandran Nair, J.

Two transporting agencies and the Ernakulam Chamber of Commerce representing transporting agencies generally are the petitioners challenging the constitutional validity of S.45B of the Kerala General Sales Tax Act, hereinafter called the "Act". While sub-s.(1) of the impugned Section provides for levy of penalty at double the amount of sales tax for transport of goods in Kerala without the documents prescribed under S.29(2) of the Act, for repeated offence, sub-s.(2) in addition to penalty provides for detention of the vehicle involved for a period of thirty days. The impugned section introduced to the Act with effect from 1.4.2000 is extracted hereunder for easy reference:

45B. Penalty for transport of goods without records.

(1) If any officer empowered under sub-s.(1) of S.29A finds on inspection of any vehicle or vessel that any transport agency or contract carriage transport any goods without the documents required under sub-s.(2) of S.29, such officer may without prejudice to any action that may be taken under S.29A, impose by an order in writing on such transporting agency, or contract carriage, or the owner of the vehicle a penalty equal to twice the amount of the tax due on such goods subject to a minimum of five thousand rupees;

(2) Where a transporting agency or contract carriage or the owner of the vehicle or vessel is subsequently guilty of the offence under sub-s.(1) for more than one occasion, the Officer referred to in that sub-section may, in addition to the penalty that may be imposed under the said sub-section, by an order in writing detain the vehicle or vessel for a period of 30 days from the date of inspection of the vehicle or vessel, whether the vehicle or vessel used for the commission of the offence on subsequent occasion is the same or not.

(3) The vehicle or vessel detained under sub-s.(2) shall be kept in safe custody by the officer detaining the vehicle in a place notified by the Government.

(4) No order under sub-s.(1) or sub-s.(2) shall be passed unless such person affected by such order shall be given an opportunity of being heard.

(5) The vehicle or vessel detained under this section shall after the expiry of thirty days from the date of detention release to the person from whom it was detained.

Explanation:-- Transporting agency for the purposes of the section shall include parcel agency.

The contention of the petitioners is that since transporters are not engaged in purchase or sale of goods and are not "dealers" as defined under the Act, there cannot be any evasion of sales tax by them and so much so, penalty cannot be levied on them. The further contention raised is that entry 54 of the State List to the 7th Schedule to the Constitution of India which authorises the State legislature to make law for levy of tax on sale or purchase of goods does not give authority to the State Legislature to enact S.45B affecting public carriers who are exclusively governed by parliamentary law for Public Carriers, made under Entry 7 of the Concurrent List. The specific contention of the petitioners is that S.45B is a colourable piece of legislation because bailment is covered by the provisions of the Contract Act and the Carriers Act, which do not provide for any such penalty and therefore S.45B has to be declared as unconstitutional, by virtue of operation of Art.251 of the Constitution of India. The Special Government Pleader Sri. Raju Joseph appearing for the respondents on the other hand contended that the provisions are intended only to prevent evasion of sales tax and the petitioners will be liable for penalty under S.45B of the Act only if they help evasion of tax by transporting goods without any documents prescribed under the Act.

2. I do not think this Court should go in detail on all points argued by the petitioners because the issue is essentially covered by at least three decisions of the Supreme Court. Those are State of Rajasthan v. M/s. D.P.Metals, (2002) 10 KTR 1