The impugned proviso to Section 37(6) of the Haryana General Sales Tax Act, 1973 falls within the scope of Entry 54 of List-II of the Seventh Schedule and does not violate the fundamental right to trade and business or the freedom of trade and commerce guaranteed under the Constitution.

G.S. Singhvi, J. - Whether first proviso to Section 37(6) of the Haryana General Sales Tax Act, 1973 (for short, the the Act) is ultra vires to the legislative powers of the State or is violative of the petitioners fundamental right to carry on trade or business or the provisions of Part-XIII of the Constitution of India is the main question which arises for determination in this petition filed under Article 226 of the Constitution of India for quashing of order dated 15.1.2001 passed by the Assistant Excise and Taxation Officer, Rewari (respondent No. 2).

2. This petitioner is engaged in transport business and is having its own fleet of trucks. It entered into an agreement with M/s Indian Petrochemicals Corporation Ltd. (for short, IPCL) for transportation of the latters products to different places in the country. On 26.11.2000, respondent No. 2 detained its truck No. HR 38-D/1185 on the allegation of transportation of goods without requisite documents and by the impugned order, he imposed penalty of Rs. 2,45,000/- on the ground of contravention of the provisions of Section 37 of the Act.

3. Shri K.L. Goyal argued that the first proviso to Section 37(6), which has been added by Haryana Act No. 12 of 2000, should be declared ultra vires to the legislative power of the State because subject-matter of the said proviso falls under Entry 92 of List-I of the Seventh Schedule of the Constitution of India and not under Entry 54 of List-II. He further argued that the impugned provision should be declared violative of Article 19(1)(g) because it affects the petitioners right to carry on its trade and business without hindrance. He submitted that even though the statutory presumption created by virtue of the impugned provision is rebuttable, the authorities constituted under the Act have treated it to be irrebutable and in all the cases, heavy penalties are being imposed without examining the explanation offered by the dealer and/or transporters for unintentional contravention of the provisions of Section 37.

4. We have given serious thought to the arguments of the learned Counsel, but have not felt persuaded to, agree with him and in our opinion, the writ petition deserves to be dismissed.

5. For the purpose of deciding the constitutional validity of the impugned proviso, it will be useful to refer to the provisions of Section 37(1) to (6), which read as under :-

"Establishment of check post or barriers and inspection of goods in transit.

(1) If with a view to preventing, or checking evasion of tax under this Act in any place or places in the State, the State Government, considers it necessary so to do, it may, by notification, direct the establishment of check-post or the erection of a barrier or both, at such place or places as may be notified.

(2) The owner or person-in-charge of the goods and, when the goods are carried by a goods carrier, the driver or any other person-in-charge of the goods carrier, shall carry with him a goods carrier record, a trip sheet or log-book along with a challan, as may be prescribed, or cash memorandum or bill as the case may be, in respect of the goods meant for the purposes of trade and carried by him or in the goods carrier and produce the same before an officer-in-charge of a check post or barrier or any other officer of the department not below the rank of an Assistant Excise and Taxation Officer, as the State Government may, by notification, appoint, checking the goods carrier at any other place.

(3) At every check-post or barrier or at any other place when so required by any officer referred to in sub-section (2) in this behalf, the owner or person-in-charge of the goods shall stop and the driver or any other person-in-charge of the goods carrier, entering or leaving the limits of the State, shall stop the goods carrier and keep it stationary, as long as may reasonably be necessary, and allow the officer in-charge of the check-post or barrier or the officer as aforesaid to examine the goo