CIVIL WRIT JURISDICTION CASE No.843 OF 1992. ---- In the matter of an application under Articles 226 and 227 of the Constitution of India. ---- M/S MAHABIR ABHUSHAN BHANDAR, Gurhatta, Patnacity through its Proprietor Mahabir Prasad, son of late Sadho Lal, Gurhatta, Patnacity, bearing sales-tax Registration No.PCW 556 ®-1549 C- (Petitioner) Versus 1. Government of Bihar through the Secretary, Govt.of Bihar, Ministry of Finance, Secretariat, Patna 2. The Commissioner of Commercial Taxes, Bihar, New Secretariat, Patna 3. The Deputy Commissioner of Commercial Taxes, Investigation Bureau, Patna Division, Patna, Respondents. For The Petitioner : MR.AJAY KUMAR RASTOGI, SENIOR ADVOCATE For The Respondents : None. P R E S E N T THE HON'BLE MR. JUSTICE NAVIN SINHA THE HON'BLE MR. JUSTICE JYOTI SARAN Navin Sinha & Jyoti Saran,JJ. The petitioner questions the final order dated 7.1.1992 passed by the Deputy Commissioner Commercial Taxes, Vigilance Bureau, Patna Division. It imposes a penalty of Rs.55,770.30 paise for the consignment of specified bullions not carrying the proper papers in Form-28-B as required under Rule 42(2) of the Bihar Sales Tax Rule, (hereinafter called the Sales Tax Rules) framed under the Bihar Finance Act,(hereinafter called the Finance Act) 2 contravening Section 31(2a) and (3) of the same. No one appears on behalf of the respondents. No counter affidavit has been filed on their behalf. It was submitted on behalf of the petitioner that its Agent who was carrying the specified bullion ornaments on consignment basis in the name of the consignor with its value disclosed by a specified train. This consignment note contained proper details of the Bihar Sales Tax and Central Sales Tax number of the consignor. The goods were for sale out-side the State and under Section 7(1)(b) of the Finance Act, no tax upon the sale was payable within the State of Bihar as it stood exempted. The consignment was however seized by the Government Railway police on 4.1.1992 and handed over to the Commercial Taxe authorities allegedly for absence of necessary documents. A notice was then issued purported to be under Rule 19 of the Sales Tax Rules which stated that the consignment was not accompanied by necessary papers prescribed under Section 31(2a) of the Finance Act in the prescribed Form 28B as required by Rule 42(2) of the Sales Tax Rules. The first submission of the petitioner was that it was mandatory under Rule 19(1) of the Sales Tax Rules that notice for a proceeding under Section 3 31(3) for suspected evasion of Tax shall contain a gist of the accusations. The notice dated 4.1.1992 did not comply the statutory requirement and there were no gist of the accusations that the goods were being transported without proper papers for sale in the State with an intention to evade the payment of taxes. The notice therefore itself was defective. In any event of the matter, the petitioner did file his reply to the same. The final order does not disbelieve that the goods were being transported for sale out-side the State and therefore it was irrelevant that the consignment was not accompanied by form 28B. Reliance, in support of the proposition that the notice initiating proceedings itself was bad in absence of the gist of the accusations, was placed on 1997 STC 222 (East India Transport Agency V. State of Bihar). A Division Bench of this Court on a conjoint reading of Section 31 and Rule 19 held as follows: ”xxx From the above provisions, it is clear that before ordering seizure of the goods, the prescribed authority must be satisfied on verification that the transportation of goods was being made in contravention of the provision of sub-section (2a) of Section 31 of the Act in a manner likely to deprive of the taxes payable. The satisfaction mentioned is not subjective but an objective one. That was not done in this case. Likewise, sub-section (3) of the section 31 of the Act enjoins on the prescribed authority to give a finding before levying penalty that the person concerned has not 4 only contravened sub-section (2a) of section 31 of the Act, but also must give a finding that such contravention is likely to lead to evasion of tax payable under the Act. Here again, the prescribed authority has failed to give such findings. We have noticed that rule 19 expressly enjoins on the prescribed authority to give the gist of accusation and also reasonable time not exceeding 15 days before resorting to initiation of proceedings under section 31 of the Act. Admittedly, the show cause notice did not contain the gist of accusation, and, only a day’s time was given to show cause, and this cannot be considered as a fair and reasonable opportunity of hearing.” The next submission was that in absence of an appropriate notification having been issued by the Commercial taxes department after insertion of section 31(2a) of Bihar Act 14 of 1983 with effect from 31.1.1990 there has been no publication or notification of the forms required for transportation for the purpose under section 34 and 35 of the Finance Act and in absence of which, it could not be alleged that there has been any violation by not carrying Form 28B. Reliance for the purpose was placed upon a Division bench decision in 1996 (1) PLJR 547 holding at paragraph no.19 as follows: “19.- On perusal of sub-section (2a) of Section 31 as well as Section 27 of the Bihar & Orissa General Clauses Act (Act no.1 of 1917), I am unable to accept the submission of the learned Advocate General that as per provisions of Section 27 of the Act, forms 28A and 28B, prescribed under the old provisions of sub-section (2a) continue to hold the field in the absence of issuance of any notification by the Commissioner of Taxes, after the old 5 provisions of the Act was substituted by the Ordinance 20 of 1993. I find force in the submission of the learned counsel for the petitioners that substituted sub- section (2a) of Section 31 of the Act having specifically provided that a Person transporting goods shall carry form of declaration in such form as may be prescribed by the Commissioner by a notification. While transporting the goods through the State of Bihar, for giving effect to the provision of sub-section (2a) of Section 31 of the Act after the old provisions of sub-section (2a) was substituted, it was essential to prescribe or adopt the form of declaration by the Commissioner by a notification. As such, in absence of any notification issued by the Commissioner prescribing or adopting form of declaration there is no scope for the prescribed authority to exercise power under sub-sections (2a) and (3) of Section 31 of the Act on the ground of contravention of the provisions of sub- section (2a) of Section 31 of the Act inasmuch as in the absence of any notification prescribing or adopting in form of declaration it cannot be said that sub-section (2a) of Section 31 of the Act has been contravened for not carrying the declaration form as contemplated under sub- section (2a) of Section 31 of the Act. That being so, the impugned proceedings initiated against the petitioners on the allegation of contravention of the provisions of sub-section (2a) of Section 31 of the Act for either not carrying the forms 28A and 28B or carrying the said forms with incomplete or with defective entries which were adopted by the notification No.S.O.1432 dated 28.12.1985, prior to substitution of sub-section (2a) of Section 31 of the Act, is illegal and without jurisdiction and on this ground alone, the impugned proceedings initiated against the petitioners for alleged violation of sub-section (2a) of Section 31 of the Act and the impugned orders passed seizing the goods etc. of the petitioner and the orders imposing penalty in the exercise of power under sub-section (2a) of Section 31 of the Act are illegal and without jurisdiction and cannot be sustained.” 6 In our view, the writ petition can be disposed on the first issue alone. We have perused the notice dated 4.1.1992. We hold that the very initiation of the proceedings under section 31 of the Finance Act being not in accordance with the Rule 19 of the Sales Tax Rules without a gist of the accusation, vitiates the entire proceedings including the final order of penalty dated 7.1.1992. The impugned order dated 7.1.192 is accordingly quashed. The petitioner stands discharged of any security furnished by it in pursuance of the interim order dated 6.2.1992. The writ application stands allowed. (Navin Sinha,J.) (Jyoti Saran,J.) Patna High Court, Dated, 19th July, 2010. NAFR/ ahk