K P ABDULLA AND BROS Vs. CHECK POST OFFICER KANDAIGOUNDANCHAVADI

JUDGEMENT

(1.) THESE appeals arise from an order of Ramakrishnan, J. dismissing two connected petitions, one to-quash a penalty of Rs. 1000 in lieu of confiscation of goods under Section 42 (3) (a) of the Madras General Sales Tax Act 1959, and the other for a direction to the respondents to deliver to the appellant the goods which had been seized and confiscated while on transit as Kandaigoundan-chavadi check post which is the border of Coimbatore Dt. in this state and Calicut in the Kerala state. The learned Judge declined to accept that the said provision is invalid, and held that R. S. Jhaver v. Commissioner of Commercial taxes, 1965-16 STC 708 (Mad) and Commissioner of Commercial Taxes v. R. S. Jhaver, in which this Court held, the Supreme Court-agreeing with it, that Section 41 (4)was invalid, were distinguishable.

(2.) THE lorry K. L. R. 3919 was searched by the Check Post Officer and was found to carry at the time 85 bags of which 45 contained maida, 20 atta and 20 khandasari sugar. The lorry driver, however, carried with him a sale bill and delivery note, which covered only 85 bags of atta. On the ground that the lorry attempted to transport without any sale bill of delivery not for the maida and khandasari sugar and on suspicion that there was an attempt at evasion of tax, the Check Post officer by an order dated 2-3-1965, confiscated the goods, but gave an option to the appellant to pay a penalty of Rs. 1000 in lieu of confiscation of the goods. The check Post Officer declined to accept the explanation of the appellant which was that he had purchased in Madras 85 bags of atta, 45 bags of maida and in Nellore 20 bags of Khandasari sugar, he being of the view, as we said, that there was really an attempt to suppress the sales of maida and khandasari sugar under the cloak of the sale bill and delivery note for atta only.

(3.) BEFORE Ramakrishnan, J. no attempt appears to have been made to challenge the validity of the penalty order on its merits and the learned Judge proceeded on the basis that in the exercise of writ jurisdiction the finding of the Check post officer that the explanation of the appellant was not acceptable could not be revised. No point about this has been made for the appellant before us. The appeals have, therefore, been confined to the validity of Section 42 (3) (a) and the effect of 1965-16 STC 708 (Mad) and on that question.