Judgment :- The short but interesting question arises for consideration in this original petition is whether the petitioner, a dealer, is entitled to get delivery note from the statutory authority for transport of goods in book form. The supply of delivery notes in blank form are denied to the petitioners on the ground that it may lead to tax evasion. The department feels on each occasion single delivery note should be given and if that procedure is adopted there will be an effective check on the dealer from evading tax. In view of this, the respondents are not issuing delivery note to the petitioner for transport of goods. 2. The petitioner is dealer in spices and it purchases spices from different places within the State. The petitioner's registered office is at Mattancherry, Cochin. The petitioner has to transport the goods purchased to its registered office or head office at Mattancherry. While transporting the goods the petitioner has to pass through several check posts within the State. To pass through the check post delivery notes will have to the shown to the officers in charge of the check posts. There are several check posts within the State and the goods have to be purchased at different places. The goods have to be transported on each occasion after purchasing and loading and if the petitioner or its agents have to rush to the respondents to get delivery note before transport, it will create in numerable difficulties and hardship and operate as an impediment in transporting the goods of the petitioner. The petitioner has aright to transport the goods and it has a fundamental right to carry on the business or trade. Reasonable restriction can no doubt be imposed and the question to be considered is whether the demand of the respondents or the insistence of the respondents to get delivery note on each occasion after loading goods in the lorry is justified. In short the question is whether the petitioner is entitled to get blank delivery notes in book form. I am not concerned with the expediency or the advisability of the procedure in the light of the intention of the respondents to check evasion of tax. I am only concerned with the legality of the action. Judicial audit of administrative action is the responsibility of this Court. With this purpose in mind, I looked into the relevant provisions in the Act. I am only concerned with the legality of the action. Judicial audit of administrative action is the responsibility of this Court. With this purpose in mind, I looked into the relevant provisions in the Act. 3. Section 29 of the Kerala General Sales Tax Act, 1963 provides that if the Government considers that with a view to prevent or check evasion of tax under the Act in any place or places in the State it is necessary so to do, they may by notification in the Gazette, direct setting up of check posts at such place or places, and define the boundaries of such check posts and notify the area of the check posts include A within such boundaries, referred to as the notified area, and demarcate such boundaries by means of barriers or otherwise for the purpose of regulating the passage of goods across the notified area. S.29 further provides that no person shall transport within the State across or beyond the notified area any consignment of goods exceeding such quantity or value as may be prescribed by any vehicle or vessel unless he is in possession of (omitting unnecessary parts) a delivery note and a declaration in the prescribed form containing such particulars. Therefore, if the petitioner intends to purchase spices and transport the same toils godown within the State, no tax liability is attracted at that stage as spices are taxable only at the last purchase point in the State. To transport the goods the petitioner must have a delivery note and a declaration. S.57 of the Kerala General Sales Tax Act is the rule making power. S.57(2)(a), (f), (i), and (o) are extracted hereunder: Power to make rules: (1) The Government may, by notification in the Gazette, make rules to carry out the purposes of this Act. To transport the goods the petitioner must have a delivery note and a declaration. S.57 of the Kerala General Sales Tax Act is the rule making power. S.57(2)(a), (f), (i), and (o) are extracted hereunder: Power to make rules: (1) The Government may, by notification in the Gazette, make rules to carry out the purposes of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may be provided for,- (a) All matters expressly required or allowed by this Act to be prescribed; (f) The administration of the notified areas and the barriers erected and the check posts set up under the Act and the regulation of the work therein; (i) The form in which and the particulars to be contained in any declaration to be given under this Act, the authority from whom, the conditions subject to which and the fees subject to payment of which such form of declaration may be obtained, the manner in which such form shall be kept in custody and records relating thereto maintained, the manner in which any such form may be used and any such declaration may be furnished; (o) the issue of delivery notes or way bills in respect of goods delivered or transferred to retail dealers in pursuance of sales effected to them, the form and manner of their issue and the time for which they should be preserved. Section 2(o) provides for making rule for the issuance of delivery notes in respect of goods and S.2(i) provides for making rule in respect of the form in which and particulars to be contained in the declaration. Rules made pursuant to S.57 are Rules 32, 35, 33 (a ) and 35(a ). Rules 32(17) of the Kerala General Sales Tax Rules slates that every wholesale dealer while delivering goods to a retail dealer in pursuance of a sale where no sale bill is issued or every person who consigns goods by any vehicle or vessel or any other means in pursuance of a sale where a sale bill is not issued or consigns goods through the said means from one godown to another or from one of his shops to another for the purpose of storage or sale, shall issue a delivery note in Form 26. 4. Rule 35 is the rule for establishment of Check Posts and inspection of goods in transit. 4. Rule 35 is the rule for establishment of Check Posts and inspection of goods in transit. Sub-rule (13) says that the delivery note referred to sub-section (2) of S.29 shall be in Form No.26 and it further provides that the declaration referred to in S.29(2)(b) shall be in Form No.27B. Therefore, the person transporting the goods, whether the taxable event has arrived or not, will have to be in possession of the delivery note in Form No.26 and declaration in Form No.27B. S.57(1)as stated above enables to make rules prescribing the form in which and the particulars to be contained in the declaration to be given, the authority from whom, the conditions subject to which and the fees subject to payment of which, such form of declaration may be obtained, the manner in which such form shall be kept in custody etc. R.33A provides for the safe custody and procedure on loss etc. of delivery note. Sub-rule (1) says that the delivery note in Form No.26 obtained from the assessing authority by a dealer shall be kept in safe custody and he shall be personally responsible for the loss, destruction or theft of any such note or the loss of revenue to Government, if any, resulting directly or indirectly from such theft, loss or destruction. It clearly indicates that the dealer is entitled to get delivery note and he is not required to rush to the assessing authority on each occasion when goods are loaded in lorry for transport to get delivery note, Form No.26. Sub-rule (2) to Rule 33A further requires that every dealer to whom any delivery note is issued by an assessing authority shall maintain a register in Form No.19B. Sub-rule (2) to Rule 33A further requires that every dealer to whom any delivery note is issued by an assessing authority shall maintain a register in Form No.19B. On a perusal of Form No.19B the following are seen indicated: (1) date of receipt 2) Authority from whom received 3) Book Number, 4) Serial Number 5) Date of issue, 6) Serial Number, 7) Name and Address of the buyer, 8) Number and address of the person from whom goods purchased, 9) Address of the agent or shop or godown which transport is made, 10) Description of the goods for which issued, 11) Quantity, 12) Value, 13) Sale bill No. or purchase bill No., 14) Reference to date of accounting & Folio No. of the book in which accounted, 15) Assessing Authority to whom original was sent with date, 16) Date of surrender to assessing authority etc. This will indicate that delivery note is being given in book form containing several delivery notes. Sub-rule (3) of Rule 33A make the position further clear. It requires any unused;. delivery note remaining in stock with a dealer to be surrendered to the assessing authority on discontinuance of the business by the dealer or cancellation of his certificate of registration or on his ceasing to be an assessee. Sub-rule (4) states that no dealer to Whom a delivery note is issued by the assessing authority shall either directly or through any other person, transfer the same to another person except as provided in sub-rule (18) of rule 32. Sub-rule (7) ofR.33A gives power to the Government by notification in the gazette to declare that delivery note of a particular description shall be deemed to be obsolete and invalid with effect from the specified date and sub-rule (8) provides that on such publication all dealers will have to surrender to the assessing authority all unused forms. Thus a reading of R.33A leads to the conclusion that delivery notes are issued in book form and not given to dealer on each occasion. Rule 35 is the rule relating to the establishment of check post and inspection of goods in transit. Thus a reading of R.33A leads to the conclusion that delivery notes are issued in book form and not given to dealer on each occasion. Rule 35 is the rule relating to the establishment of check post and inspection of goods in transit. R.35(2) provides that no person shall transport within the State across or beyond the notified area any consignment of the goods if the value thereof exceeds twenty five rupees by any vehicle or vessel unless he is in possession of: a ) Either a bill of sale or delivery note or way bill or certificate of ownership; and b) A declaration also when the vehicle or vessel enters or leaves the State limits. Elaborate provision is made in that rule for stopping the vehicle, for inspection of the goods in transit, for confiscation of goods or imposing penalty, if authority is satisfied that there is an attempt to evade tax. All these statutory devices and safeguards to check evasion of sales tax will become unnecessary if the present executive device namely single delivery note and prepayment of tax are to be adopted. On a feading of the Rules, I am satisfied that the petitioner is entitled to get delivery notes from the respondents in book form, in any case blank deliver}' notes in advance which the petitioner can use from time to time as and when required. In fact petitioner stated that delivery notes in book form are given to other assessees and the procedure adopted in denying the same to the petitioner is discriminatory and violative of Art.14 of the Constitution. 5. Government Pleader brought to my notice that an earlier decision of this Court in O.P.No.7033/1989. That was a case when the same petitioner approached this Court when it was directed to furnish additional security deposit of Rs.10 lakhs. Ext.P2 in that case was the notice calling upon him to furnish additional security. The petitioner challenged the said notice in that original petition and this Court held in that case requiring the petitioner to furnish additional security is not vitiated. Even at that time there was another instruction contained in Ext.P3 in that case requiring the petitioner to fill up delivery notes in the presence of the officer before the issue of the same. Even at that time there was another instruction contained in Ext.P3 in that case requiring the petitioner to fill up delivery notes in the presence of the officer before the issue of the same. Regarding that contention this Court held that whether such a direction can be issued or not is not relevant to be considered in that case. The question of additional security had been subject matter of revision before the Deputy Commissioner after the judgment of this Court, Government Pleader submitted that the judgment had been taken in Writ Appeal viz. W.A815/1989 and as observed in the writ appeal judgment revision petition was filed. Ext.P1 is the revisional order. In the revisional order it is stated that the only basis for the demand of additional security is the allegation of under valuation by the petitioner. But there was no under valuation. Therefore, it was decided that there was no justification for demanding additional security. But the Government Pleader submitted that there is an averment in Ext.P1 revisional order of the Deputy Commissioner dated 26-7-1990 that from August 1989 the Assessing, Authority was directing to pay sales tax in advance of the entire purchase of goods and only on payment of the full tax, the petitioner is given delivery note by the assessing authority. That is a factual situation mentioned by the petitioner in Ext.P1. But the Government Pleader submitted that because of that procedure no additional security has been taken from the petitioner and the petitioner itself agreed for paying sales tax in advance before payment of full tax. In this case there is no question of payment of tax for the taxable event, viz. last purchase has not been arrived. The purchase is made within the State and transport has to be effected to the godown. The last purchase is an event that may arise subsequently. The petitioner wanted delivery notes to transport the goods within the State. If the petitioner uses delivery notes for transport of taxable goods, that is, to transport goods outside the State, then, it may be that it is bound by the undertaking for payment of tax and counsel for the petitioner submitted that the petitioner is complying with the undertaking and paying the tax in full before taxable goods are transported outside the State using delivery notes. If the petitioner violates the undertaking or misuses delivery notes, adequate provision is made in the Act for penalising the petitioner. The mere apprehension of the department that if delivery notes are given to the petitioner m 'book form it may lead to tax evasion due to clandestine movement of taxable goods is not a ground for denying delivery notes to the petitioner. When there are adequate provision in the Act to penalise the assessee for tax evasion or abuse of the forms or declaration or violation of the provisions of the Act and Rules, denial of delivery notes to the petitioner alone is discriminatory and cannot be supported. There is also no warrant in law in requiring the petitioner alone to obtain delivery note on each occasion for movement of goods across the check posts. 6. Counsel for the respondent submitted that this Court has already upheld the validity of S.29A(2B) authorising advance collection of tax. That decision is reported in Dunlopv. State of Kerala, 1991 (2) JCLT 852. lam not concerned with the validity or otherwise of S.29A(2B) in this case. The only question that arises for consideration is whether the petitioner is entitled to delivery notes and in the light of the relevant provisions of the Act and Rules aforesaid, I have no doubt in holding that the petitioner is entitled to get the delivery notes. Therefore, I allow the original petition and direct the first respondent to issue delivery notes to the petitioner on payment of specified fee.