K. N. SAIKIA. J. - (1.) THE Judgment of the court was delivered by
(2.) THESE appeals by special leave are from a full bench judgment of the Patna High court in two Writ Petition under Articles 226 and 227 of the Constitution of India allowing the petitions and quashing the Bihar governmentS Notification No. S. 0. 1432 dated 28/12/1985 as violative of Articles 301 and 304 of the Constitution of India. Ss. (2-o) 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 form of declaration or adopt a form of declaration or permit prescribed for the purpose of S. 34 and 35 of this part, and, he may also prescribe in the said notification, 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. Under the aforesaid amended provision the following Notification was issued: 28/12/1985 S.O. 1432-In exercise of the powers conferred by Ss. (2-a) of S. 31 of the Bihar Finance Act, 1981 (Bihar Act 5 of 1981 Part I, the Commissioner adopts Forms XXVIII-A and XXVIII-B as the declaration for the purpose of the aforesaid Ss. 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 196 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 Ss. (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 XXVIII-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 1/01/1986. /Bikrikar/vividh/121-308/85 By order of the governor of Bihar MUKUND PRASAD Commissioner of Commercial Taxes and Special secretary to government
(3.) 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 13/02/1986, the officers of the Investigation Bureau Jamshedpur Division, inspected the said truck and all necessary papers including a road permit in Form XXVIII-B for the 165 bags of mustard (sarso) were produced at the time of inspection. In the road permit the bill number had not been mentioned in column 9 in Form XXVIII-B. On that ground the Inspecting Officers seized the goods loaded in the afore aid truck and detained it at Mango Mufassil Police Station at Jamshedpur. A notice was issued to the petitioner to show cause as to why penalty should not be imposed under S. 31(3 of the Act. He was directed to appear before the Inspecting Officer on 14/02/1986. THE petitioner being a member of the Singhbhum Chamber of Commerce and Industry, moved the said organisation to agitate the matter before the authority and on a representation by the said 197 Chamber the truck with the goods therein were released on 15/02/1986. In reply to the show cause notice the appellant took the stand that no permit in the required Form was necessary and in any case it was violative of the petitioners constitutional right of freedom of interstate tide and commerce. THE contention was rejected and a penalty of Rs. 8,330.00 was imposed by order dated 29/05/1986 ; and thereafter the consequential demand notice No. 986 dated 2/06/1986 was issued. Aggrieved, the appellant filed a writ petition in the Patna High court under Articles 226 and 227 of the Constitution of India challenging, inter alia, the Notification No. S. 0. 1432 dated 28/12/1985 as ultra vires the Articles 301 and 304 of the Constitution of India, and also the order imposing penalty and the consequential demand notice. The High court held, inter alia, that the impugned notification imposed unwarranted restriction? on interstate trade and commerce the freedom whereof stood guaranteed ; that the decision of this court in Hansraj Bagrecha v. State of Bihar squarely covered this case ; that the impugned notification was not of regulatory character; and that the decision in Sodhi Transport Co. v. State of U. P. did not apply as that case dealt with the question of transit pass only. The notification was accordingly quashed and the penalty order with demand notice set aside.;