JUDGMENT G.S. Singhvi, J. - Whether first proviso to Section 37(6) of the Haryana General Sales Tax Act, 1973 (for short, the the Act) is ultra vires to the legislative powers of the State or is violative of the petitioners fundamental right to carry on trade or business or the provisions of Part-XIII of the Constitution of India is the main question which arises for determination in this petition filed under Article 226 of the Constitution of India for quashing of order dated 15.1.2001 passed by the Assistant Excise and Taxation Officer, Rewari (respondent No. 2). 2. This petitioner is engaged in transport business and is having its own fleet of trucks. It entered into an agreement with M/s Indian Petrochemicals Corporation Ltd. (for short, IPCL) for transportation of the latters products to different places in the country. On 26.11.2000, respondent No. 2 detained its truck No. HR 38-D/1185 on the allegation of transportation of goods without requisite documents and by the impugned order, he imposed penalty of Rs. 2,45,000/- on the ground of contravention of the provisions of Section 37 of the Act. 3. Shri K.L. Goyal argued that the first proviso to Section 37(6), which has been added by Haryana Act No. 12 of 2000, should be declared ultra vires to the legislative power of the State because subject-matter of the said proviso falls under Entry 92 of List-I of the Seventh Schedule of the Constitution of India and not under Entry 54 of List-II. He further argued that the impugned provision should be declared violative of Article 19(1)(g) because it affects the petitioners right to carry on its trade and business without hindrance. He submitted that even though the statutory presumption created by virtue of the impugned provision is rebuttable, the authorities constituted under the Act have treated it to be irrebutable and in all the cases, heavy penalties are being imposed without examining the explanation offered by the dealer and/or transporters for unintentional contravention of the provisions of Section 37. 4. We have given serious thought to the arguments of the learned Counsel, but have not felt persuaded to, agree with him and in our opinion, the writ petition deserves to be dismissed. 5. 4. We have given serious thought to the arguments of the learned Counsel, but have not felt persuaded to, agree with him and in our opinion, the writ petition deserves to be dismissed. 5. For the purpose of deciding the constitutional validity of the impugned proviso, it will be useful to refer to the provisions of Section 37(1) to (6), which read as under :- "Establishment of check post or barriers and inspection of goods in transit. (1) If with a view to preventing, or checking evasion of tax under this Act in any place or places in the State, the State Government, considers it necessary so to do, it may, by notification, direct the establishment of check-post or the erection of a barrier or both, at such place or places as may be notified. (2) The owner or person-in-charge of the goods and, when the goods are carried by a goods carrier, the driver or any other person-in-charge of the goods carrier, shall carry with him a goods carrier record, a trip sheet or log-book along with a challan, as may be prescribed, or cash memorandum or bill as the case may be, in respect of the goods meant for the purposes of trade and carried by him or in the goods carrier and produce the same before an officer-in-charge of a check post or barrier or any other officer of the department not below the rank of an Assistant Excise and Taxation Officer, as the State Government may, by notification, appoint, checking the goods carrier at any other place. (3) At every check-post or barrier or at any other place when so required by any officer referred to in sub-section (2) in this behalf, the owner or person-in-charge of the goods shall stop and the driver or any other person-in-charge of the goods carrier, entering or leaving the limits of the State, shall stop the goods carrier and keep it stationary, as long as may reasonably be necessary, and allow the officer in-charge of the check-post or barrier or the officer as aforesaid to examine the goods carried by him or in the goods carrier, by breaking open the package or packages, if necessary, and inspect all records relating to the goods or of the driver or other person-in-charge of the goods carrier who shall also furnish such other information as may be required by the aforesaid officer, who, if considered necessary, may also search the goods carrier and the driver of the other person-in-charge of the goods carrier or of the goods. (4) The owner or person-in-charge of the goods or goods carrier, entering or leaving the limits of the State, shall furnish a copy of goods receipt, documents as referred to in sub-section (2), or a declaration containing such particulars, in such form obtained from such authority, in the manner as may be prescribed, of the goods carried by him or in such carrier, as the case may be, before the officer-in-charge of the check-post or barrier and shall produce the copy of the said goods receipt, documents or declaration duly verified and returned to him by the officer-in-charge of the check-post or barrier before any other officer as mentioned in sub-section (2) : Provided that where the owner or person-in-charge of the goods or the driver or other person incharge of the goods carrier bound for any place outside the State passes through the State such owner or person-in-charge of the goods or the driver or other person-in-charge of such carrier shall in the prescribed manner furnish, in duplicate, to the officer-in-charge of the check-post or barrier of his entry into the State, a declaration in the prescribed form and obtained from him a copy thereof fully verified. The owner or person-in-charge of the goods carrier or the driver or other person-in-charge of the goods carrier shall deliver within twenty-four hours the said copy to the officer-in-charge of the check-post or barrier at the point of his exit from the State, failing which he shall be liable to pay a penalty to be imposed by the officer-in-charge of the check-post or barrier of the entry, not exceeding two thousands rupees or twenty per centum of the value of the goods, whichever is greater : Provided further that no penalty shall be imposed unless the person concerned has been given a reasonable opportunity of being heard : Provided further that where the owner or person-in-charge of the goods for the driver or other person-in-charge of the goods or carrier bound from a place inside the State to any other place inside the State has to pass through another State, such owner or person or the driver or other person shall furnish, in duplicate to the officer-in-charge of the check-post or barrier of his exit from the State a declaration in the prescribed form and obtained from him a copy thereof fully verified and shall deliver the same to the officer-in-charge of the check-post or barrier of his entry into the State, within four hours of his exit from the previous barrier or check-post in the State failing which he shall be liable to pay penalty to be imposed by the officer-in-charge of the check-post or barrier at his exit, not exceeding two thousand rupees or twenty per centum of the value of goods, whichever is greater, unless he explains the time taken in excess to the satisfaction of the officer-in-charge of the exit barrier or check-post. (5) If the officer-in-charge of the check-post or barrier or other officer as mentioned in sub-section (2) has reasons to suspect that the goods under transport are not covered by proper and genuine documents as mentioned in sub-section (2) or sub-section (4) as the case may be or that the person transporting the goods is attempting to evade payment of the tax under this Act, he may, for reasons to be recorded in writing and after hearing the said person, order the unloading and detention of goods and shall allow the same to be transported only the owner of the goods or his representative or the driver or other person-in-charge of the goods carrier on behalf of the owner of the goods furnishing to his satisfaction a security, in the prescribed form and manner, for an amount not less than (fifteen) per centum and not more than (thirty) per centum of the value of the goods : Provided that such officer may, if he deems fit, having regard to the nature of the carrier or the goods and other relevant matter, allow such goods to be transported, on the owner of the goods or his representative or the driver or other person-in-charge of the goods carrier, executing, in a prescribed manner, a bond with or without securities for securing the amount due as security : Provided further that such officer may, if he deems fit, having regard to the nature of the goods and the goods carrier, and other relevant matters, hand over the goods on superdari to any person for safe custody, on payment of such charges for the custody, as may be prescribed, which shall be recovered from the owner of the goods. The person to whom the goods are handed over on superdari shall not hand over the same to any body except with the written permission of such officer otherwise the value of the goods shall be recoverable as arrears of land revenue from him : Provided further that where any goods are detained, a report shall be made immediately and in any case within twenty-four hours of the detention of the goods by the officer detaining the goods to the officer-in-charge of the district seeking the latters permission for the detention of the goods for a period exceeding twenty-four hours and when so required and if no intimation to the contrary is received from the latter, the former may assume that his proposal has been accepted. (6) The officer detaining the goods shall record the statement, if any, given by the owners of the goods or his representative or the driver or other person-in-charge of the goods carrier and shall require him to produce proper and genuine documents as referred to in sub-section (2) or sub-section (4), as the case may be, if after the enquiry, (including an enquiry into the nature of the transaction which occasioned the movement of goods) such officer finds that there has been an attempt to evade the tax due under this Act, he shall, by order, impose on the owner of the goods (and in case the owner is not forthcoming or his identity is not disclosed by the person-in-charge of the goods or the driver or person-in-charge of the goods carrier, in which goods are being carried, or the person-in-charge of the goods carrier or the driver) a penalty of not less than fifteen per cent and not more than thirty per cent of the value of the goods, and in case he finds otherwise, he shall order the release of the goods : Provided that non-production of challan, duly filled in, as referred to in sub-section (2) of Section 37 of the Act before an officer not below the rank of Assistant Excise and Taxation Officer or such other officer, as the State Government may by notification, appoint, checking the goods carrier at any place in the State will be a sufficient reason to believe that the person transporting the goods is attempting to evade the tax under this Act : Provided that no penalty shall be imposed unless the owner of the goods or his representative or person-in-charge of the goods or the goods carrier or the driver has been given a reasonable opportunity of being heard." 6. A perusal of the provisions quoted above shows that the primary object of Section 37 is to prevent the evasion of sales tax. Sub-section (1) of Section 37 empowers the State Government to issue notification for establishment of check-post or the erection of a barrier or both at appropriate places in the State. A perusal of the provisions quoted above shows that the primary object of Section 37 is to prevent the evasion of sales tax. Sub-section (1) of Section 37 empowers the State Government to issue notification for establishment of check-post or the erection of a barrier or both at appropriate places in the State. Sub-section (2) lays down that the owner or in-charge of goods vehicle shall carry, with him a goods carrier record, a trip sheet or log-book along with the prescribed challan or cash memorandum or bill in respect of the goods meant for the purpose of trade and produce the same before an officer-in-charge of the check-post or barrier or any other officer or the department not below the rank of Assistant Excise and Taxation Officer, as the State Government may, by notification, appoint for checking the goods carrier at any other place. Sub-section (3) requires the driver of the vehicle, owner/incharge of the goods to stop the vehicle and keep it stationary for a reasonable time and allow the officer-in-charge of the check-post/barrier to check the contents of the vehicle by breaking open the package or packages, if necessary, and inspect all records relating to the goods carried. Sub-section (4) imposes a duty on the owner or person-in-charge of the goods or goods carrier entering or leaving the limits of the State to furnish a copy of goods receipt, documents as referred to in sub-section (2) or a declaration containing such particulars in such form as may be prescribed. Proviso to this sub-section lays down that where a goods vehicle is bound for any place outside the State of Haryana, the owner or the person-in-charge of such vehicle shall furnish, in duplicate, a declaration in respect of his entry into the State of Haryana in the prescribed form and obtain a copy thereof duly verified by the officer-in-charge of the check-post or the barrier and that copy shall be delivered within forty-eight hours to the officer-in-charge of a check-post or the barrier at the exit point. A penalty of Rs. 2,000/- or 20% of the value of the goods has been prescribed for violation of this condition. However, before imposing such penalty, reasonable opportunity of hearing has to be given to the person concerned. A penalty of Rs. 2,000/- or 20% of the value of the goods has been prescribed for violation of this condition. However, before imposing such penalty, reasonable opportunity of hearing has to be given to the person concerned. Sub-section (5) empowers the officer-in-charge of the check-post or barrier or any other officer mentioned in sub-section (2) to order detention of the goods if the officer concerned has the reason to suspect that the goods under transport are not covered by proper and genuine documents specified in sub-sections (2) or (4) or that the person transporting the goods is attempting to evade the payment of tax due under the Act and such goods are required to be released on furnishing of security in the prescribed form and manner. The three provisos to sub-section (5) empowers the detaining officer to allow the goods to be transported subject to the execution of bond with or without sureties. Sub-section (6) of Section 37 lays down that the officer detaining the goods shall record the statement, if any, given by the owner of the goods or his representative or the driver or other person-in-charge of the goods carrier and require him to produce proper and genuine documents referred to in sub-section (2) or sub-section (4), as the case may be and if after holding enquiry, such person finds that there has been an attempt to evade the tax due under the Act, then he can impose on the owner of the goods a penalty of not less than 15% and not more than 30% of the value of the goods. In case, he finds otherwise, then he is required to pass order for release of the goods. If the owner is not forthcoming or his identity is not disclosed by the person-in-charge of the goods or the driver or person-in-charge of the goods carrier, in which the goods are being carried, then the penalty can be imposed on the person incharge of the goods or the goods carrier or the driver. If the owner is not forthcoming or his identity is not disclosed by the person-in-charge of the goods or the driver or person-in-charge of the goods carrier, in which the goods are being carried, then the penalty can be imposed on the person incharge of the goods or the goods carrier or the driver. First proviso to sub-section (6) of Section 37 lays down that non-production of challan, duly filled in, as referred to in sub-section (2) of Section 37 before an officer not below the rank of Assistant Excise and Taxation Officer or such other officer, as the State Government may, by notification appoint for checking goods carrier at any place, will be a sufficient reason to believe that the person transporting the goods is attempting to � evade the tax under the Act. Second proviso to Sub-Section (6) of Section 37 embodies the rules of natural justice. It lays down that no penalty shall be imposed unless the owner of the goods or his representative or person in-charge of the goods or the goods carrier or the driver has been given a reasonable opportunity of hearing. 7. We may now refer to some decisions in which the ambit and scope of various entries included in the three Lists of the Seventh Schedule has been considered. In one of the earliest decisions in United Provinces v. Mt. Atiga Begam, AIR 1941 FC 16, the Federal Court of India examined the scope of the Lists under the Government of India Act, 1935. Gwyer, C.J., speaking for the Court, observed that, "none of the items in the Lists is to be read in a narrow or restricted sense and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it." In Navinchandra Mafatlal, Bombay v. Commissioner of Income Tax, Bombay City, AIR 1955 S.C. 58, the word income appearing in Entry 54 of List-I of the Seventh Schedule of the Government of India Act, 1935, came up for consideration before a Constitution Bench of the Supreme Court. Their Lordships approved the dictum laid down by Gwyer, C.J., and held that the word income should be given widest connotation in view of the fact that it occurs in a legislative head conferring legislative power. Their Lordships approved the dictum laid down by Gwyer, C.J., and held that the word income should be given widest connotation in view of the fact that it occurs in a legislative head conferring legislative power. Some of the observations made by the Supreme Court in the context of interpretation of legislative entries read as under :- "The rules which apply to the interpretation of other statutes apply equally to the interpretation of a constitutional enactment subject to this reservation that their application is of necessity conditioned by the subject-matter of the enactment itself. None of the items in the Lists is to be read in a narrow or restricted sense and each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it. It is, therefore, clear that in construing an entry in a List conferring legislative powers the widest possible construction according to their ordinary meaning must be put upon the words used therein, that the words should be read in their ordinary, natural and grammatical meaning subject to this rider that in construing words in a constitutional enactment conferring legislative power the most liberal construction should be put upon the words so that the same may have effect in their widest amplitude." 8. In M/s. Chowringhee Sales Bureau (P) Ltd v. C.I.I. West Bengal, AIR 1973 Supreme Court 376, a three Judges Bench of the Supreme Court interpreted the word sale used in Entry 48 of List-II of the 7th Schedule in the context of an argument that auction sale does not fall within the scope of Bengal Finance (Sales Tax) Act, 1941. While rejecting the plea of the petitioner, their Lordships of the Supreme Court held as under :- "We find ourselves unable to agree with the above observations. An auction sale in view of the provisions of Section 4 read with Section 64 of the Sale of Goods Act would have to be considered to be a sale for the purpose of Sale of Goods Act. There is nothing in Entry 48 which restricts the power of the Legislature in the matter of the imposition of the sales tax to the levy of such tax on the owner of the goods on whose behalf they are sold or the purchaser only. There is nothing in Entry 48 which restricts the power of the Legislature in the matter of the imposition of the sales tax to the levy of such tax on the owner of the goods on whose behalf they are sold or the purchaser only. Where transaction is one of sale of goods as known to law, the power of the legislature to impose a tax thereon, in our view, is plenary and unrestricted subject only to any limitation which might have been imposed by the Government of India Act or the Constitution. In view of the wide amplitude of the power of the State or Provincial Legislature to impose tax on transactions of sale of goods, it would, in our opinion, be impermissible to read a restriction in Entry 48 on the power of the State Legislature as would prevent the said legislature from imposing tax on an auctioneer who carries on the business of selling goods and who has in the customary course of business, authority to sell goods belonging to the principal: What is sought to be taxed is the transaction of the sale of goods. If there is a close and direct connection between the transaction of sale and the person made liable for the payment of sales tax, the statutory provisions providing for such levy of sales tax would not offend entry 48. It cannot be disputed that there is a close and direct connection between an auctioneer and the transaction of auction sale. As Such, the definition of the word "dealer" in Explanation 2 of Section 2(c) of the Bengal Act cannot be deemed to be ultra vires the power of the Provincial or State Legislature on the ground that the legislature purports to levy tax on a person who is neither a seller nor a purchaser. It was, in our opinion, within the competence of the Provincial Legislature to include within the definition of the word "dealer" an auctioneer who carries on the business of selling goods and who has in the customary course of business authority to sell goods belonging to the principal." In Commissioner of Commercial Taxes and others v. Ramkishan Shrikishan Jhaver and others, (1967) 20 STC 453, the Supreme Court considered the challenge to the validity of Section 41 of the Madras General Sales Tax Act, 1959. While upholding the competence of the State Legislature to enact sub-sections (2) and (3) of Section 41, under which power was given to the State machinery to make search and seizure, was not ultra vires to the legislative power of the State, their Lordships held that clause (a) of the second proviso to Section 41(4), which empowers the recovery of tax on goods found in the dealers office etc., even before its sale which is the taxable event, is repugnant to the entire scheme of the Act and is void for repugnancy. Their Lordships further held that clause (a) is not severable from the other parts of sub-section (4) and, therefore, the same is unconstitutional. Some of the observations made in that decision are extracted below : "While making a law under any entry in the Schedule to the Constitution it is competent to the Legislature to make all such incidental and ancillary provisions as may, be necessary to effectuate the law; particularly, in the case of a taxing statute, it is open to the Legislature to enact provisions which would check evasion of tax. It is under this power to check evasion that provision for search and seizure is made in many taxing statutes. The Legislature has, therefore, power to provide for search and seizure in connection with taxation laws in order that evasion may be checked. The provisions of Section 41(2) and (3) of the Madras General Sales Tax Act, 1959, are reasonable restrictions on the fundamental right to hold property and to carry on trade under Article 19(1)(f) and (g) of the Constitution and are protected by clauses (5) (6) of Article 19. Though sub-section (2) of Section 41 of the Madras General Sales Tax Act, 1959, does not in terms provide for search, the power of search is implicit in the sub-section with reference both to the accounts etc. maintained by the dealer and the goods in the possession of the dealer. But the main part of sub-section (2) does not give to the officer any power of inspecting the residential premises of the dealer and it cannot, therefore be read as giving the power of search of the residential house of the dealer. maintained by the dealer and the goods in the possession of the dealer. But the main part of sub-section (2) does not give to the officer any power of inspecting the residential premises of the dealer and it cannot, therefore be read as giving the power of search of the residential house of the dealer. By the fact that Section 41(2) gives power to the Government to empower any officer to make a search, it cannot be considered as conferring an arbitrary power for the Government will see that Officer or an Inspector of the Revenue Department or a Sub-Inspector of the Police Department, empowered by the Government to make searches, is not an officer of proper status to make searches under Section 41(2) of the Act. Further, the provisions of the Code of Criminal Procedure, so far as may be, apply to all searches made under sub-section (2) of Section 41 of the Act, and, therefore Section 165 of the Code of Criminal Procedure would apply mautatis mutandis to searches made thereunder. The safeguards under Section 165 which apply to searches under Section 41(2) are : (i) the empowered officer must have reasonable rounds for believing that anything necessary for the purpose of the recovery of tax may be found in any place within his jurisdiction; (ii) he must be of the opinion and such thing cannot be otherwise got without undue delay; (iii) he must record in writing the grounds for his belief; and (iv) he must specify in such writing so far as possible the thing for which search is to be made. In view of these and other safeguards provided in Chapter VII of the Code of Criminal Procedure, it cannot be said that sub-section (2) is an unreasonable restriction on the fundamental right to hold property and to carry on trade. If in relation to a search under sub-section (2), the safeguards are not followed anything recovered on such a defective search must be returned. The proviso to sub-section (2) of Section 41 provides for something independent of the main part of the sub-section. Where a search warrant issued by a Magistrate is shown to be defective because he had not applied his mind to the question of issuing it, anything recovered on the basis of such a warrant from the search of a residential house must be returned. Where a search warrant issued by a Magistrate is shown to be defective because he had not applied his mind to the question of issuing it, anything recovered on the basis of such a warrant from the search of a residential house must be returned. The provisions in sub-section (3) requiring (i) that the officer should record his reasons in writing, which has to be done before the accounts are seized; (ii) that the dealer should be given a receipt, which means that the receipt must be given as and when the accounts etc. are seized; (iii) that the accounts etc. seized should be retained only so long as may be necessary for their examination and for any enquiry or proceeding under the Act; and (iv) that such accounts should not be kept for more than 30 days at a time except with the permission of the next higher authority, are sufficient safeguards, and the restriction under sub-section (3), if any, on the right to hold property and the right to carry on trade, must be held to be a reasonable restriction." 9. In The Check Post Officer, Coimbatore v. K.P. Abdulla (1971) 27 STC 1, a Constitution Bench of the Supreme Court considered the challenge to the vires of Section 42(3) of the Madras General Sales Tax Act, 1959, under which the Check Post Officer was empowered to confiscate the goods and levy penalty in lieu of confiscation if the driver did not carry with him the documents specified in the section. Some of the observations made in that case, which have been heavily relied upon by the learned counsel for the petitioners are reproduced below :- "Entry 54 of List II of the Seventh Schedule to the Constitution authorises the State Legislature to legislate in respect of taxes on the sale or purchase of goods. A legislative entry does not merely enunciate powers : it specifies a field of legislation and the widest import and significance should be attached to it. Power to legislate on a specified topic includes power to legislate in respect of matters which may fairly and reasonably be said to be comprehended therein......" A taxing entry, therefore, confers power upon the Legislature to legislate for matters ancillary or incidental including, provisions for preventing evasion of tax. Power to legislate on a specified topic includes power to legislate in respect of matters which may fairly and reasonably be said to be comprehended therein......" A taxing entry, therefore, confers power upon the Legislature to legislate for matters ancillary or incidental including, provisions for preventing evasion of tax. Sub-sections (1) and (2) of Section 42 are intended to set up machinery for preventing evasion of sales tax. But, in our judgment, the power to confiscate goods carried in a vehicle cannot be said to be fairly and reasonably comprehended in the power to legislate in respect of taxes on sale or purchase of goods. By sub-section (3) the officer-in-charge of the check post and barrier has the power to seize and confiscate any goods which are being carried in any vehicle if they are not covered by the documents specified in the three sub-clauses. Sub-section (3) assumes that all goods carried in a vehicle near a check post are goods which have been sold within the State of Madras and in respect of which liability to pay sales tax has arisen, and authorises the Check Post Officer, unless the specified documents are produced at the check post or the barrier, to seize and confiscate the goods and to give an option to the person affected to pay penalty in lieu of confiscation. A provision so enacted on the assumption that goods carried in a vehicle from one State to another must be presumed to be transported after sale within the State is unwarranted. In any event power conferred by sub-section (3) to seize and confiscate and to levy penalty in respect of all goods which are carried in a vehicle whether the goods are sold or not is not incidental or ancillary to the power to levy sale tax. A person carrying his own goods even as personal luggage from one State to another or for consumption, because he is unable to produce the documents specified in clauses (i), (ii) and (iii) of sub-section (3) of Section 42, stands in danger of having his goods forfeited. Power under sub-section (3) of Section 42 cannot be said to be ancillary or incidental to the power to legislate for levy of sales tax. 10. Power under sub-section (3) of Section 42 cannot be said to be ancillary or incidental to the power to legislate for levy of sales tax. 10. In R.S. Joshi, Sales Tax Officer, Gujarat v. Ajit Mills Limited and another, (1977)40 STC 497, a seven Judges Bench of the Supreme Court examined the constitutional validity of Sections 37(1)(a) and 46(2) of the Bombay Sales Tax Act, 1959 (as applicable to the State of Gujarat), under which the State was empowered to forfeit any sum collected by way of tax in contravention of Section 46 of the Act. The High Court of Gujarat had struck down the provision by holding that the State did not have the power to enact such a law. The Supreme Court reversed the judgment of the High Court and held that the two provisions were not ultra vires to the powers of the State Legislature inasmuch as the same fell within the range of ancillary or incidental power of the State Legislature under Entry 54 read with Entry 64 of List-II of the 7th Schedule of the Constitution of India. Their Lordships further held that it is permissible for the State Legislature to enact that sums collected by the dealers by way of sales tax, but are not eligible under the State Law and prohibited by, should be forfeited to the public exchequer punitively. 11. In Dunlop India Limited v. State of Punjab (1972)30 STC 597, a learned Single Judge declared that Section 14-B(8) of the Punjab General Sales Tax Act, 1948 (as it then stood), under which the Sales Tax authorities were given power to seize the goods carried in a goods vehicle was ultra vires to the State legislature. The learned Single Judge relied on the observations made by the Supreme Court in Check Post Officer, Coimbatore v. K.P. Abdulla (supra), and held that if no tax is payable in respect of the goods carried the question of evasion of tax does not arise and even if in Form ST XXIV a wrong figure has been stated, it cannot be concluded that there was a deliberate attempt of showing the value of the goods at a lower figure than they are actually valued with a view to avoid payment of tax. That decision was affirmed by the Division Bench in the State of Punjab v. Dunlop India Limited (1974) 33 STC 168. 12. That decision was affirmed by the Division Bench in the State of Punjab v. Dunlop India Limited (1974) 33 STC 168. 12. The constitutional validity of Section 14-B(7) and (8), as amended by Punjab Act No. 9 of 1974 was considered by a Full Bench in Mool Chand Chuni Lal v. Shri Manmohan Singh, (1977) 79 PLR 456 (F.B) The Full Bench referred to the decision of the Single Judge as well as the Division Bench in the case of Dunlop India Limited and of the Supreme Court in Commissioner of Commercial Taxes v. Ramkishan Shrikishan Jhaver (supra), and Check Post Officer v. K.P. Abdulla (supra), and held that prevention of evasion of sales tax is a power incidental or ancillary to the levy of sales tax and falls within Entry 54 of List-II of the Seventh Schedule of the Constitution and the power to detain the goods and levy of penalty in case there is an attempt to evade tax cannot be held to be without constitutional sanction. The relevant observations made in the decision of the Full Bench are as reproduced below :- "It will be noticed at once that Section 14-B(6), as it stood originally, provided for the seizure of any goods not covered by documents and Section 14-B(8) provided for the seizure of all goods in respect of which the declaration was false. The seizure might be made irrespective of the question whether there was any attempt to evade tax. The basic but unwarranted assumption underlying, both the provisions for seizure, as in the case before the Supreme Court, was that the goods were transported after sale within the State. Again, as in the case before the Supreme Court, no attempt was made to specify what goods might be seized. The provisions were considered by Bal Raj Tuli, J., and the Division Bench to fall within the principles laid down in K.P. Abdullas case. But the position is quite different now. The new provision for the levy of penalty [amended Section 14-B(7)] is no longer based on any assumption that the goods were transported after sale within the State. Its present basis is the attempt to evade tax and it prescribes a condition precedent to the levy of penalty. The condition precedent is that the authorised officer should record a finding that there has been an attempt to evade the tax due under the Act. Its present basis is the attempt to evade tax and it prescribes a condition precedent to the levy of penalty. The condition precedent is that the authorised officer should record a finding that there has been an attempt to evade the tax due under the Act. It cannot possibly be disputed that the prevention of evasion of sales tax is a power incidental or ancillary to the levy of sales tax and falls within Entry 54 of List II of Schedule VII of the Constitution. Section 14-B(7), which provides for detention of goods and levy of penally if there has been an attempt to evade the tax due under the Act, cannot, therefore, be held to be without constitutional sanction. It is further to be noticed that the goody which are to be detained are also specified in Section 14-B(6) as the goods meant for trade and not covered by proper and genuine documents." xx xx xx xx xx "While Section 14-B(8), as it stood originally, provided for the payment of the tax recoverable and a penalty, present Section 14-B(7) does not provide for recovery of the tax but provides for the imposition of penalty which is calculated not on the basis of the tax payable but on the basis of the value of the goods. The present provision is clearly outside the rule laid down in Commissioner of Commercial Taxes v. Ramkishan Shrikishan Jhaver, (1967) 20 STC 453 (S.C.). It cannot for a moment be pretended that there can be no attempt to evade the tax due under the Act before the liability to pay the tax has arisen. A scheme or device to evade the tax may start operating long before the actual liability to pay the tax arises. As soon as the scheme or device is set in motion there is an attempt to evade the tax due under the Act and it will not be necessary to wait till the liability to pay the tax actually arises. If an attempt to evade tax is discovered earlier, the liability to be subjected to penalty is straightaway attracted. In our view, there is no repugnancy between the provision for levy of penalty under Section 14-B(7) when an attempt to evade the tax is discovered and the general scheme of the act which provides for the levy of tax at the point of first sale within the State." 13. In our view, there is no repugnancy between the provision for levy of penalty under Section 14-B(7) when an attempt to evade the tax is discovered and the general scheme of the act which provides for the levy of tax at the point of first sale within the State." 13. In Sodhi Transport Co. and another v. State of U.P. and another, (1986) 62 STC 381, the constitutional validity of Sections 28 and 28-B of the Uttar Pradesh Sales Tax Act, 1948, and Rule 87 of the Uttar Pradesh Sales Tax Rules, 1948 was considered by the Supreme Court. Section 28 empowered the State Government to establish check posts on barriers for preventing evasion of tax or other dues payable under the Act. Sections 28 and 28-B provided for obtaining of transit pass by the driver or other person-in-charge of the vehicle at the time of entry at the first check post or barrier and deliver it to the officer-in-charge of the last check post or barrier before exit with a rider that his failure to do so will give rise to presumption that the goods carried thereby had been sold within the State by the owner of the person- in-charge of the vehicle. Rule 87 contained procedure for issuance of transit pass. It was urged on behalf of the petition-appellant that the Sections 28 and 28-B of the Act and Rule 87 of the Rules were outside their scope of Entry 54 of List-II of the Seventh Schedule to the Constitution and infringed freedom of trade, commerce and intercourse guaranteed under Article 301 of the Constitution and further they impose unreasonable restrictions on the freedom of trade guaranteed under Article 19(1)(g) of the Constitution. The Supreme Court rejected the challenge and affirmed the decision of the Allahabad High Court with the following observations :- "Section 28-B as inserted in 1973 in U.P. Sales Tax Act and R. 87 as inserted in 1974 in U.P. Sales Tax Rules are introduced to check evasion of tax and to provide a machinery for levying tax from persons (transporters) who dispose of goods inside the State and avoid tax which they are otherwise liable to pay. The law provides enough protection to them and makes provision to enable them to show that they are in fact not liable to pay any tax. Thus the said provisions are not unconstitutional. The law provides enough protection to them and makes provision to enable them to show that they are in fact not liable to pay any tax. Thus the said provisions are not unconstitutional. The provisions are not unreasonable and the State legislature is competent to legislate them." ** ** ** ** ** ** "A statutory provision which creates a rebuttable presumption as regards the proof of a set of circumstances which would make a transaction liable to tax with the object of preventing evasion of the tax cannot be considered as conferring on the authority concerned the power to levy a tax which the legislature cannot otherwise levy. A rebuttable presumption which is clearly a rule of evidence has the effect of shifting the burden of proof and it is hard to see how it is unconstitutional when the person concerned has the opportunity to displace the presumption by leading evidence." ** ** ** ** ** ** "It is only where the presumption is not successfully rebutted, the authorities concerned are required to rely upon the rule of presumption in Section 28-B of the Act. It is, therefore, not correct to say that a transaction which is proved to be not a sale is being subjected to sales tax. When once a finding is recorded that a person (transporter) has sold the goods which he had brought inside the State, then he would be a dealer even according to the definition of the word dealer as it stood from the very commencement of the Act subject to the other conditions prescribed in this behalf being fulfilled. There is, therefore, no substance in the contention that a transporter was being made liable for the first time after 1979 with retrospective effect to pay sales tax on a transaction which is not a sale. Tax becomes payable by him only after a finding is recorded that he has sold the goods inside the State though with the help of the presumption which is a rebuttable one." ** ** ** ** ** ** The levy of sales tax on goods which are held to have been sold inside the State cannot be considered as contraventing Article 301 of the Constitution. The restrictions imposed are not also shown to be unreasonable. They do not unduly hamper trade. On the other hand they are imposed in the public interest. The restrictions imposed are not also shown to be unreasonable. They do not unduly hamper trade. On the other hand they are imposed in the public interest. The contention is based on Article 301 and Article 19(1)(g) of the Constitution are, therefore, without substance." 14. In CWP No. 304 of 2000, M/s Amrit Banaspati Co. Ltd v. State of Punjab and others (2001-2)128 PLR 106, and a bunch of other petitions decided on 22.12.2000, a Division bench of this court examined the constitutional validity of Section 14-B(6)(ii) and 14-B(7)(iii) of the Punjab General Sales Tax Act, 1948. After reviewing various judicial precedents, the Division Bench culled out seven propositions of law, the extracts of which read as under :- (i) while construing entries of Lists I, II and III of the Seventh Schedule to the Constitution, the widest possible construction according to their ordinary meaning must be put upon the words used therein so that the entries may have effect in their widest amplitude. (ii) The legislative entries do not merely enunciate powers. They specify a field and, therefore, widest import and significance should be attached to them. (iii) The power to legislate on a specified topic includes the power to legislate in respect of matters which may be fairly comprehended therein. In other words, the power to legislate on a particular topic includes the power to legislate on ancillary and incidental matters, but not on matters which do not have reasonable or proximate connection with the topic of legislation. (iv) The power of the State legislature to impose tax on transaction of sale or purchase of goods includes the power to legislate on such incidental and ancillary matters, which may be necessary to effectuate the purpose of the law. (v) The power to enact law for prevention of the evasion of sales tax and to provide for search and seizure is incidental or ancillary to the levy of sales tax and falls within Entry 54 of List-II of Seventh Schedule to the Constitution and such law cannot be declared unconstitutional on the ground that it is unreasonable or violative of Article 19(1)(g) or Article 301 of the Constitution. (vi) However, in exercise of the legislative power vested in it under Entry 54 of List II, the State cannot legislate on matters which do not have reasonable or proximate connection with the levy of tax. (vi) However, in exercise of the legislative power vested in it under Entry 54 of List II, the State cannot legislate on matters which do not have reasonable or proximate connection with the levy of tax. (vii) A statutory provision which creates a rebuttable presumption as regards the proof of a set of circumstances, which would make a transaction liable to tax with the object of preventing evasion of tax, cannot be considered as conferring, on the authority concerned the power to levy tax, which the legislature cannot otherwise levy. 15. The Court then proceeded to hold that Section 14-B(6)(ii) is intra vires to the Constitution and Section 14-B(7) is unconstitutional in so far as it makes the imposition of penalty equivalent to 50% of the value of the goods as mandatory. 16. If the impugned proviso is examined in the light of the above analysis of Section 37 and judicial precedents on the subject, we do not find any difficulty in holding that it falls within the scope of Entry 54 of List-II of the Seventh Schedule and does not violate the petitioners fundamental right to trade and business guaranteed under Article 19(1)(g) or the freedom of trade and commerce guaranteed under Part XIII of the Constitution. 17. The argument of Shri Goyal that in view of the new proviso, the authorities constituted under the Act are treating the imposition of penalty as mandatory cannot be accepted for the simple reason that the petitioner has not produced any evidence before the Court to factually substantiate this plea. That apart, a bare reading of the plain language of the newly inserted proviso shows that it merely introduces a rebuttable presumption that the person transporting the goods is attempting to evade the tax. This presumption can be rebutted by the person concerned by producing evidence to prove that the allegation contained in the notice is incorrect and that, in fact, no attempt had been made to evade the payment of tax. Therefore, it cannot be held that the impugned proviso violates the petitioners right to freedom of trade or commerce or interferes with the freedom of trade and commerce guaranteed under Part-XIII of the Constitution. Therefore, it cannot be held that the impugned proviso violates the petitioners right to freedom of trade or commerce or interferes with the freedom of trade and commerce guaranteed under Part-XIII of the Constitution. In Sodhi Transport Co.s case (supra), a similar provision contained in Section 28-B of the Uttar Pradesh Sales Tax Rules, 1948 was upheld by the Supreme Court with the observation that "a statutory provision which creates a rebuttable presumption as regards the proof of a set of circumstances which would make a transaction liable to tax with the object of preventing evasion of the tax cannot be considered as conferring on the authority concerned the power to levy a tax which the legislature cannot otherwise levy. A rebuttable presumption which is clearly a rule of evidence has the effect of shifting the burden of proof and it is hard to see how it is unconstitutional when the person concerned has the opportunity to displace the presumption by leading evidence." 18. By applying the ratio of the decision of Sodhi Transport Co.s case (supra), we hold that the impugned proviso neither violates the petitioners fundamental right to freedom of trade or business nor it impedes the freedom of trade and commerce. 19. The petitioners challenge to the order dated 15.1.2001 deserves to be rejected on the short ground that it has failed to avail the statutory alternative remedy of appeal in Titaghur Paper Mills Co. Ltd. and another v. State of Orissa and another. A.L.R. 1983 S.C. 603, Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd. and others, AIR 1985 S.C. 330 and State of Goa and others v. Leukoplast (India) Ltd., JT 1997(3) SC 322, the Supreme Court has repeatedly held that the High Court should not entertain a petition under Article 226 of the Constitution of India if an effective alternative remedy is available to the petitioner and in the present case, we do not find any valid ground to deviate from that rule. 20. For the reasons mentioned above, the writ petition is dismissed. However, the petitioner shall be free to avail the remedy of appeal against the order dated 15.1.2001. Petition dismissed.