Vaidialingam, J.:— In these three writ petitions Mr. T.N Subramania Iyer, learned counsel for the respective petitioners, challenges the order of the respective Sales Tax Officer, issuing notices to the concerned petitioners on the basis of the provisions of sub-section (6) of section 16A of the General Sales Tax Act, 1125 (Act XI of 1125).
2. The contention that is raised before us in all these writ petitions by the learned counsel is that before taking action for confiscation of the goods, no opportunity of being heard has been given to the concerned petitioners, nor has an enquiry in the manner prescribed been conducted as is mandatory under the proviso to sub-sections (1) to (5) of section 16A of the Act. Before we go to the scheme of section 16A, as well as the proviso, we will refer to the facts in these individual writ petitions. In O.P 1094 of 1959, the petitioner seeks to have the notice, exhibit P1 dated 11th September, 1959, issued by the Sales Tax Officer quashed. According to the petitioner, when certain goods, namely, 7 bags of maida flour, were being transported to his place of business and which have been purchased by him, the goods were seized by the concerned officers and taken into custody. Though some explanation was given by the cart-man to the authorities concerned, the department has ultimately issued the notice exhibit P1 which is under attack.
3. Exhibit P1 states that at the time of inspection of the goods vehicle on 10th September, 1959, at the entrance to the Sabapathi Koil Street, Chalai, it was found that the cart-man who was in charge of the goods vehicle, did not carry with him any receipt as required under section 16A (2) of the General Sales Tax Act in respect of seven bags of maida. The notice further proceeds to state that the seven bags of maida are stated to belong to the petitioner and as the person in charge of the goods vehicle has violated the provisions of section 16A(2) of the Act, the goods have been seized and are kept in the custody of the Sales Tax Officer. The notice further states that under section 16A(6) of the Act there is an option to the petitioner to pay penal tax in lieu of confiscation. Finally, the notice winds up by saying:
“You are, therefore, requested to intimate to this office within 5 days whether you are willing to opt the method referred to. If no reply is received within the time, the goods seized will be confiscated and sold in public auction”.
4. The main grievance of the petitioner, as we have already mentioned earlier, is that the notice will clearly show that the officer has already made up his mind to confiscate the goods, without adopting the procedure indicated in the proviso to sub-sections (1) to (5) of section 16A of the Act and therefore the petitioner had no real opportunity of placing his points of view before the officer, nor had he an opportunity of being heard and there has been no enquiry in the manner prescribed. The grievance of the petitioner is that after the officer has practically decided the matter, namely, confiscating the goods, he has only given the petitioner an option viz., either to accept the confiscation or to pay penalty four times the tax recoverable under sub-section (6) of section 16A of the Act.
5. In the counter-affidavit, the State has referred to the fact that there has been no violation of any of the provisions of either the Statute or the Rules. In paragraph 2 of the counter-affidavit in particular, the respondent categorically states that the person in charge of the goods vehicle did not carry with him any of the documents as required by section 16A(2) of the Act and the person in charge of the goods and also the petitioner who is the owner thereof declined to pay the tax as provided in sub-section (6) of section 16A in lieu of confiscation of the said goods. There is a further statement to the effect:
“Hence the goods were duly confiscated by me. They are liable to be sold and added to the revenues of the State”.
6. In O.P 1095 of 1959 the petitioner, no doubt who is a different petitioner, challenged the notice issued under exhibit P1 by the Sales Tax Officer, Second Circle, Trivandrum, dated nth September, 1959. Here again, the notice is more or less similar to the notice, exhibit P1 in O.P 1094 of 1959; but the goods in question were twelve bags of dhall and the other part of the notice is more or less identical with exhibit P1 in the connected petition. It gives again the same option to the petitioner therein to pay penal tax in lieu of confiscation as provided under sub-section (6) of section 16A of the Act. Here again the petitioner's grievance is that when the goods were being brought in the cart to his shop, they have been seized by the concerned officer and no opportunity has been given to the petitioner as provided in the proviso to sub-sections (1) to (5) of section 16A of the Act.
7. Here again, in the counter-affidavit filed by the Sales Tax Officer the same allegations as made in the connected writ petition have been made. Therefore, it is not necessary to advert to them in any great detail. There is also an allegation to the effect that the Sales Tax Officer has not violated any of the provisions of the Statute or the Rules.
8. In O.P 1096 of 1959, the petitioner therein again attacks the notice, exhibit P1 dated nth September, 1959, issued by the Sales Tax Officer, II Circle, Trivandrum. The goods in question were eight bags of soda ash and in all other respects, the notice exhibit P1 is also identical with exhibit P1 which we have already referred to in O.P 1094 of 1959. The allegations made By the petitioner as well as the Sales Tax Officer in this case are also exactly similar to those that we have referred to in O.P 1094 of 1959.
9. Section 16A of the General Sales Tax Act, 1125, provides for the establishment of check post or barrier and inspection of goods while in transit.
10. Sub-section (1) gives power to the Government when they consider it necessary with a view to prevent or check evasion of tax under this Act to establish check post or erect barrier, or both, at such place or places as may be notified.
11. Sub-section (2) makes it obligatory on the part of the owner or a person in charge of the goods vehicle to carry the various documents and records referred to therein. There is also a provision in the said sub-section regarding a declaration to be given about certain particulars by the owner or person in charge of the goods vehicle when entering the State limits or leaving the State limits.
12. Sub-section (3) gives power to an officer empowered by the Government in this behalf to stop any driver or any other person in charge of the goods vehicle or boat for purpose of conducting a check and examining the contents of the vehicle or boat and also inspect all the records relating to the goods carried.
13. Sub-section (4) gives power to the officer in charge of a check post or a barrier or the officer empowered under sub-section (3) to seize and confiscate any goods which are under transport by a goods vehicle or boat and which are not covered by a goods vehicle record, a trip sheet or a log book, as the case may be, and a bill of sale or a delivery note and, when the goods vehicle or boat enters or leaves the State limits, the declaration referred to in sub-section (2) also.
14. Sub-section (5) provides that where the declaration made under subsection (2) is false in respect of the materials furnished therein, the officer in charge of the check post or barrier or any other officer empowered in that behalf shall have the power to seize and confiscate the goods in respect of which the declaration is false. Then there is a proviso to the effect that before taking action for the confiscation of goods “under this section”, the officer shall give the person affected an opportunity of being heard and make an inquiry in the manner prescribed.
15. Sub-section (6) of section 16A provides that whenever confiscation is authorised by this section the officer adjudging it shall give the owner or the person in charge of the goods an option to pay in lieu of confiscation such amount not exceeding four times the tax recoverable where the goods are taxable under this Act, and Rs. 1,000 where the goods are exempted from tax under this Act on any condition.
16. So far as the power to confiscate is concerned, that power is given under the circumstances “mentioned in sub-section (4) and sub-section (5) of section 16A. We have already stated that under sub-section (4) power is given to the officer in charge of a check post or barrier to seize and confiscate the goods which are under transport by a goods vehicle or a boat which” are not covered by the various records or declarations stated in sub-section (2) of section 16A. Again, sub-section (5) gives power to the officer to seize and confiscate the goods when a declaration made under sub-section (2) is false in respect of the materials furnished.
17. In this case, we have already stated that under exhibit P1 the officer is of the view that the person in charge of the goods vehicle did not carry with him any receipt as required under section 16A(2) of the Act and it also stated that the goods have been seized and are kept in his custody. In our opinion, so far as the notices in all these three writ petitions indicate that the person in charge of the vehicle did not have the necessary documents mentioned in sub-section (2) of section 16A, prima facie the officer will have jurisdiction to seize the goods. In respect of the non-possession of any of the documents mentioned in subsection (2) there is also power given in sub-section (4) to confiscate any goods which are under transport. But the essential point to be noted is that under the proviso to sub-sections (1) to (5) of section 16A, before action is taken for confiscation of the goods, under the said section, the officer is bound to give the person affected an opportunity of being heard and there is also an obligation on the part of the officer to make an inquiry in the manner prescribed.
18. No doubt, the proviso, as it appears in the text of the section, will give room for doubt as to whether it is a proviso only for subsection (5) of section 16A or whether it is a proviso for the entire subsections beginning from sub-section (1) and ending with sub-section (5) of section 16A. We are of the opinion that the said proviso is a proviso to the entire sub-sections (1) to (5) of section 16A and we are fortified in this view because of the use of the expression “under this section” occurring in the proviso which would not be the case if it is intended as a proviso only to sub-section (5) of section 16A. On this basis the conclusion is inevitable namely, before action by way of confiscation of goods either by virtue of the powers vested under sub-section (4) or sub-section (5) of section 16A of the Act, there is a duty or an obligation on the part of the officer to give the person affected, an opportunity of being heard and there is a further obligation and duty on the part of the officer to make an inquiry in the manner prescribed. Only after that stage is over namely, after an opportunity of being heard and an inquiry has been made in terms of the proviso indicated above, the second stage starts namely of deciding about confiscation. It is only when that stage is reached that sub-section (6) of section 16A comes into play, when also there is a duty cast upon the officer to give an option to the person concerned to pay, in lieu of confiscation, any amount not exceeding four times the tax.
19. In this case, the terms of the notice clearly indicate that the mandatory requirement under the proviso to sub-sections (1) to (5) have not been taken into account at all by the officer in question. After seizing the goods, they have straightaway proceeded on the basis that further action to be taken is only on the basis of sub-section (6) of section 16A of the Act.
20. Apart from the notices, even the counter-affidavits filed by the officers in these matters, especially paragraph 2 clearly shows that they had in mind this aspect that once the goods have been seized, the next stage is only action under sub-section (6) of section 16A of the Act. There is nothing in the counter-affidavits filed by the officers in these matters to indicate that they gave an opportunity, as required under the proviso to sub-sections (1) to (5) of section 16A of the Act.
21. Mr. T.N Subramania Iyer in these three writ petitions raised also a contention regarding the vires of section 16A of the General Sales Tax Act, 1125, as well as rules 28A and 28B of the General Sales Tax Rules. In the view that we take on the main contention urged before us regarding the validity of the notice issued by the Sales Tax Officer, it is not really necessary for us to consider that aspect. In the result, the notices which are under attack in all these writ petitions are set aside with liberty to the officers to take further action according to Jaw and in the light of the observations and directions contained in this judgment. There will be no order as to costs.
22. Mr. T.N Subramania Iyer has urged that if the action of the officers itself is illegal and beyond the jurisdiction of the officers, his clients may have a cause of action for recovery of the value of the goods. We are not concerned with those aspects in these writ petitions.
23. Ordered accordingly.