K. Raviraja Pandian, J.
1. After notice, W.P.M.Ps. are listed for orders. On consent, the main writ petitions are taken up for consideration.
2. The writ petitions are filed for issuance of a writ of certiorarified mandamus to quash the proceedings of the respondent dated August 16, 2003 in G.D. Nos. 1329, 1330 and 1331/2003-2004 and direct the respondents to release the vehicles, viz., Tata Hitachi Model Ex 300 LCH hydraulic excavators with granite buckets and kits loaded on truck No. PBK 9321 and covered by Sale Invoice No. 12000637 dated July 29, 2003, truck No. HR. 38D 6404 and covered by Sale Invoice No. 12000,638 dated July 29, 2003 and truck No. GJ 6V 6621 and covered by Sale Invoice No. 12000639 dated July 29, 2003 respectively.
3. The case of the petitioner is that the petitioner purchased three Tata Hitachi Model Ex 300 LCH hydraulic Excavators with granite bucket and kit from Telco Construction Equipment Company Limited, Jamshedpur and transported the same in trucks to their place of business at Madurai as the petitioner is the granite quarry owner and excavating and exporting granite blocks to foreign countries. At the time of transportation, the Check-post Officer, the respondent herein on August 16, 2003 intercepted the trucks and detained the three excavators on two grounds ; (i) that the bill of sale/invoice is not borne by TNGST and CST Registration numbers of the petitioner herein ; and (ii) that the consignment attracts liability of entry tax at the rate of 13 per cent under the Tamil Nadu Tax on Entry of Motor Vehicles into Local Areas Act, 1990.
4. It is the further case of the petitioner that as the respondent was not willing to release the goods on production of TNGST and CST Registration Certificates of the petitioner and insisted payment of entry tax, the petitioner approached the Joint Commissioner (Enforcement) North, Chennai with detailed representation on August 21, 2003 for release of the detained goods. But he refused to entertain the same and advised to pay the entry tax and get the goods released.
5. The counsel on either side argued the case in detail. Heard the arguments.
6. Section 42 of the TNGST Act provides for establishment of check-post or barrier and inspection of goods, while in transit. Sub-section (1) of Section 42 empowers the Government to set up check-post by notification. Sub-section (2) empowers the check-post officer to examine the contents in the goods vehicle and inspect all documents relating to the goods carried for the purpose of ascertaining, whether there has been any sale or purchase of the goods carried, whether such sale or purchase is liable to tax under the TNGST Act and if so, whether such tax has been paid, or whether the sale or purchase of the goods carried has, for the purpose of the payment of tax under the TNGST Act, been properly accounted for in the documents referred to in Sub-section (5), such as bills of sale, or delivery notes, or such other document as may be prescribed. If on examination and inspection it appears that the tax, if any, payable under the TNGST Act in respect of the sale or purchase of the goods carried, has been paid, or that the sale or purchase of the goods carried has, for the purpose of payment of tax under the TNGST Act, been properly accounted for in the documents such as bills of sale or delivery notes, the said officer shall release the goods vehicle with the goods carried.
7. Section 42 further provides that if the tax payable under the TNGST Act, in respect of the sale or purchase of the goods carried, has not been paid, or that the sale or purchase of the goods carried has not been properly accounted for in the documents aforesaid for the purpose of payment of tax under the TNGST Act and if the check-post officer is satisfied after making such enquiry as he deems fit that with a view to prevent the evasion of tax payable in respect of the sale or purchase of the goods carried, it is necessary to detain the goods, he shall detain the goods and direct the person in-charge of the goods vehicle to pay such tax or furnish adequate security in such form or in such manner. If the tax is paid or security is furnished, the goods so detained shall be released forthwith. Sub-section (8) further provides that if the tax directed to be paid or the security directed to be furnished has not been paid or furnished or if it appears to the said officer that the driver or the person in-charge of the goods vehicle is not giving the correct name and address of the owner of the goods vehicle or of the consignor or of the consignee of the goods, and if the check-post officer is satisfied after making such enquiry that with a view to prevent the evasion of tax payable in respect of the sale or purchase of the goods carried, he shall detain the goods either in the check-post or elsewhere. The proviso further provides that no such goods shall be detained by the check-post officer for more than twenty-four hours except with the permission of the next higher authority. Sub-section (8-A) vests with the check-post officer the discretion to permit the person in-charge of the goods vehicle detained under Sub-section (8) to keep the goods in the office godown or other place within the State belonging to the owner of the goods vehicle.
8. The above is the statutory provision which categorises the circumstances under which the goods could be detained by the check-post officer. The section is so couched concentrating only on the tax liability on the sale or purchase of the goods under the TNGST Act or CST Act in view of the adoption of the TNGST provisions. None of the contingencies provided in the statute are available in the present case so as to enable the respondent to pass detention order.
9. The two reasons given in the impugned goods detention orders in G.D. Nos. 1329 to 1331/2003-2004 dated August 16, 2003 are as follows :
'(i) The bill of sale/invoice is not borne by TNGST and CST registration numbers of the buyer Tvl. PRP Granites.
(ii) The consignment attracts liability of entry tax at the rate of 13 per cent under the Tamil Nadu Tax on Entry of Motor Vehicles into Local Areas Act, 1990.'
10. It is admitted by the learned counsel for the department that the petitioner is a registered dealer under the TNGST and CST and having the registration number in currency. The same is produced before the court and also annexed at page Nos. 10 and 11 of the typed set of papers. Hence, the first grounds cannot hold good for detaining the goods.
11. As regards the second reason stated in the goods detention order, I am afraid to accept such a reason is legally sustainable for detention of the goods by invoking the powers under Section 42 of the TNGST Act, which provides for detaining the goods for non-payment of tax or evasion of tax in respect of sale or purchase of the goods under the provision of the TNGST Act. The Tamil Nadu Tax on Entry of Motor Vehicles into Local Areas Act, 1990 is a separate enactment by itself, independent of the TNGST Act, except claiming a reduction in tax liability under Section 4 of the Entry Tax Act, 1990. The Act 1990 provides for charging and machinery provisions. It also prescribes the procedure for filing returns, assessment, re-assessment, payment of tax, refund, exemption. The Act further provides for appeal or revision, infliction of penalty and impounding of vehicle. Certainly, it is not the case of the respondent that the goods were impounded by invoking the provisions under the Entry Tax Act, 1990 as it is obvious that the goods has not been reached the petitioner's place. No returns or no assessment as provided under Sections 7 and 8 of the Entry Tax Act, 1990 has been made nor such stage has been reached.
12. The learned counsel for the petitioner advanced argument that the goods are not liable for entry tax as it is not a motor vehicle as defined either in the Entry Tax Act or under the Motor Vehicles Act, which definition has been adopted in the Entry Tax Act. The goods are chain mounted excavators, which could be used only in the quarry site and not adapted for road use and as such specifically excluded in the second limb of definition of motor vehicle under Motor Vehicles Act.
13. Further contention put forth by the petitioner was that the authorities under the Motor Vehicles Act have considered the subject excavators/machinery and stated that subject excavator is not registrable under the provisions of the Motor Vehicles Act. Under the Entry Tax Act, tax can be levied on the vehicles which are registrable under the provisions of the Motor Vehicles Act and in the face of the letters of the motor vehicles authorities dated September 26, 2002 and August 18, 2003 to the effect that the subject goods required no registration under the Motor Vehicles Act, the goods are not attracted entry tax. Further contention that the levy has been held to be compensatory in the judgment of this Court while upholding the constitutional validity of the 1997 Act in R. Gandhi v. Union of India, which followed the judgment of the Supreme Court in State of Bihar v. Bihar Chamber of Commerce 19961 103 STC 1 as the subject excavators are not adapted to road, i.e., the road has not been used by the excavator, the levy of entry tax is not attracted to the excavator has also been raised.
14. The learned Government Pleader relied on the decision of the Supreme Court in the case of Bose Abraham v. State of Kerala reported in [2001] 121 STC 614 to contend otherwise.
15. I am of the considered opinion that I need not delve deep and consider these points as the point of applicability or otherwise of the Entry Tax Act is not the dispute to be resolved in this case, but the dispute is as to the correctness of the goods detention order passed by the respondent. If the respondent has taken a little bit pain to look into the provision of Section 42 of the TNGST Act, which he invoked for passing the impugned orders, he would not have passed the orders impugned. The reasoning given in the impugned orders are ex facie illegal as not supported by the said provision or any authority of law, as such the same are liable to be quashed and are quashed.
16. The respondent is hereby directed to release the goods along with the vehicles, which are the subject-matter of the G.D. Nos. 1329, 1330 and 1331 of 2003-2004 dated August 16, 2003 forthwith on the petitioner furnishing an undertaking that the subject goods will not be parted with or alienated for a period of six months within which period the respondent can take any action, if so warranted, in accordance with law for recovery of any tax legally liable from the petitioner. I am constrained to conclude this order with a note of caution to the authorities under the Act to the effect that any action taken by the authorities must have the sanction of law and supported by provisions of law. Otherwise, the same would amount to illegal action and harassment of unwary public for extraneous reasons, which is not authorised under any law and cannot be the intention of the law makers.
With this observation the writ petitions are allowed. However, there is no order as to costs. Consequently, the connected W.P.M.Ps are closed.