( 1 ) THE petitioner claims to be the owner of vehicle bearing registration No KA-5 D 1333. It is the case of the petitioner that this vehicle was carrying goods namely latex from Cochin, Kerala State to Kanpur in Uttar Pradesh and the goods was being carried on behalf of transporters M/s Roshan Freight Carriers (Kanpur), which had an office at Cochin and which had hired the vehicle of the petitioner for such purpose. ( 2 ) THE vehicle was to pass through the State of Karnataka and though by such passing of vehicle through the State of Karnataka with its goods, it was not liable to pay any tax in the State of Karnataka, particularly under the provisions of the Karnataka Sales Tax Act, 1957 [for short, the Act), the vehicle nevertheless will be subject to checking at the entry point when it enters the State of Karnataka and at that stage the vehicle will be issued with a transit pass, which the person in-charge of the vehicle is required to surrender at the exit point when the vehicle exits the State of Karnataka, which in turn absolves the person carrying the goods in transit through the State of Karnataka from payment of any tax under the Act. ( 3 ) THE vehicle which had entered the State of Karnataka in whose favour the transit pass has been issue, if it fails to produce the transit pass at the exit point, as per the schedule or within the reasonable time, under the provisions of Section 28-AA (4) of the Act, it has to be presumed that the person could have sold the goods within the State of Karnataka i. e. the owner of the vehicle has sold the goods within the State and the owner can be assessed accordingly to tax by the authorized officer in the prescribed manner. ( 4 ) THE facts in this Writ Petition, which are not in dispute, are that the petitioner who was carrying latex goods in his vehicle entered Hosur Road, check post at Attibele on 30-12-2004. However, the person-in-charge of the vehicle of the petitioner was not issued with the transit pass, but on the other hand, was called upon to furnish security for a sum of Rs. However, the person-in-charge of the vehicle of the petitioner was not issued with the transit pass, but on the other hand, was called upon to furnish security for a sum of Rs. 1,43,655/- or to pay this amount for the purpose of issue of such transit pass, in terms of the order dated 30-12-2004, a copy of which is produced at Annexure-A to the Writ Petition. The vehicle was detained along with goods and remained under the detention of the respondents and as the respondents did not release the vehicle and goods and apprised the petitioner that such security was being insisted or that the petitioner was called upon to discharge the liabilities for a sum of Rs. 1,43,655/-, as this amount had been determined to be due by an earlier order dated 21-9-2004 passed under the provisions of Section 28-AA (4) of the Act in the name of one Palanivel, a copy of which is produced at Annexure-B to the Writ Petition, and as the goods that was being carried at that time was also on behalf of M/s Roshan Freight Carriers, Kanpur and on whose behalf the petitioner's goods vehicle was carrying goods in the present occasion so, the vehicle and goods were detained and the person in-charge of the vehicle was called upon to discharge the liability as had been determined under the order dated 21-9-2004. ( 5 ) QUESTIONING the action on the part of the respondents in detaining the petitioner's vehicle and also calling upon the petitioner to discharge the liabilities as had been determined by the order dated 21. 9. 2004, which had called upon to be paid by the said Palanivel, the present petition is presented, inter alia, contending that the liability determined on some other person cannot be passed on to the petitioner; that for nonpayment of amount due under the order dated 21-9-2004, the vehicle of petitioner cannot be detained; that the action of the respondents is totally illegal and not authorized by law, as it affected the petitioner's right and that the business of the petitioner is adversely affected. ( 6 ) NOTICES had been issued to the 'respondents. Ms. Niloufer Akbar, learned Government Pleader, has entered appearance on behalf of the respondents. The matter is heard finally and disposed of by this order. ( 6 ) NOTICES had been issued to the 'respondents. Ms. Niloufer Akbar, learned Government Pleader, has entered appearance on behalf of the respondents. The matter is heard finally and disposed of by this order. ( 7 ) SUBMISSION of Sri Vasanth Madhav, learned Counsel for the petitioner is that the petitioner cannot be called upon to discharge the liabilities of some other person, particularly the liability which was that of one Palanivel, owner of goods vehicle bearing registration No TN-29 B-2088; that the petitioner has nothing to do with the said person; that the petitioner has no transaction with said Palanivel and there is no occasion at all for the authorities to have detained the vehicle of the petitioner for non-payment of certain tax liability determined on the said Palanivel. In this regard, learned counsel for the petitioner has drawn my attention to the provisions of Section 28-AA (7) of the Act and submits that the provision is one meant to safeguard the interest of the revenue that if the authorities are of the view that the owner of a vehicle, who is assessed to tax under sub-section (4) of Section 28-AA of the Act, after such assessment is carrying any goods taxable under the Act, from any place outside the State in a goods vehicle from any place outside the State or movement from within the State, as the case may be and bound for any other place outside the State and is passing through the State, the authority may demand from such owner an amount equivalent to two time the tax leviable on such goods under the Act, as security, till the transit pass is surrendered at the exit check post, and submits that such security can be called upon to be furnished only by a person who is the owner of the vehicle who had been assessed to tax earlier and who was recalcitrant in discharging his tax liability. He submits that in so far as the petitioner is concerned, there is no assessment or any prior undischarged liability on the petitioner; that the provisions of the Act are not attracted at all to the case of the petitioner and as such, the respondents could not have insisted on the petitioner to pay or furnish any security. ( 8 ) MS. ( 8 ) MS. Niloufer Akbar, learned Government Pleader, appearing on behalf of the respondents, submits that having regard to the explanation occurring at the end of Section 28- AA of the Act, particularly an enlarged explanation in terms of the amendment which has come into effect from 1-8-2004, the meaning of the word 'owner' is larger enough to include even a carrier and if so, the authorities are justified in insisting on the petitioner to furnish security or pay the amount as demanded, in view of the fact that the goods carried by the petitioner belongs to or booked by M/s. Roshan Freight Carriers (Kanpur); that the earlier liability was though on one Palanivel, owner of goods vehicle bearing registration No. TN-20 B-2088, it was the goods of the carrier M/s. Roshan Freight Carriers (Kanpur), which is also the person responsible for the goods carried by the petitioner, and in such circumstance, as the authorities are entitled to collect the tax from the owner or from his goods carrier, the authorities are justified in detaining the vehicle of the petitioner, carrying the goods belonging to M/ S Roshan Freight Carriers (Kanpur ). ( 9 ) SECTION 28-AA of the Act reads as under. 28-AA. Transit of goods by road through the State and issue of transit pass: (1) When a vehicle coming goods taxable under this Act. (a) From any place out-side the State and bound for any other place outside the State and passes through this State; b) and which goods are imported into the State from anyplace outside the country and goods are being carried to any place outside the State the driver or any other person-in-charge of such vehicle shall furnish the necessary information and obtain a transit pass in duplicate containing such particulars as may be prescribed from the officer-in-charge of the first check post or barrier after his entry into the State or after movement has commenced from the State as the case may be, or from the officer empowered for the purpose of sub-section (3) of Section 28-A, upon interception of the goods vehicle after its entry into the State or after movement has commenced as the case may be. (2) The driver or the person-in-charge of the vehicle shall deliver within the stipulated time a copy of the transit pass obtained under sub- section (1) to the officer- in-charge at the last check post or barrier before his exist from the State. (3) If for any reason, the goods carried in a goods vehicle are, after entry into the State or after commencement of movement, as the case may be, not moved out of the State within the time stipulated in the transit pass, the owner of the goods vehicle shall furnish to the officer empowered in this behalf the reasons for such delay and other particulars, if any, thereof and such officer shall after due enquiry extend the time of exist by suitably amending the transit pass. Provided that where the goods carried by a vehicle are, after their entry into the State or after commencement of movement, as the case may be, transported outside the State by any other vehicle or conveyance, the onus of proving that goods -have actually moved out of the State shall be on the owner of the vehicle who originally brought the goods into the State. 4. If the driver or any other person-in-charge of the vehicle does not comply with sub-section (2), it shall be presumed that the goods carried thereby have been sold with in the State by the owner of the vehicle and shall, notwithstanding anything contained in sub-section (5) of Section 5, be assessed to tax by the officer empowered in this behalf in the prescribed manner. (5) if the owner of the vehicle having obtained the transit pass as provided under sub-section (1) fails to deliver the same as provided under sub-section (2), he shall be liable to pay by way of penalty a sum not exceeding double the amount of tax leviable on the goods transported. (6) The amount of tax and the penalty levied under this Section shall be recovered in the prescribed manner. (6) The amount of tax and the penalty levied under this Section shall be recovered in the prescribed manner. (7) Where the owner of the vehicle who is assessed to tax under sub-section (4), is carrying after such assessment any goods taxable under this Act in a goods vehicle from any place outside the State or movement from within the State, as the case may be and bound for any other place outside the State and is passing through the State, the prescribed authority may demand from such owner an amount equivalent to two times the tax leviable on such goods under this Act, as security, till the transit pass is surrendered at the exist check post. (8) The prescribed authority after being satisfied that the goods carried in the goods vehicle in respect of which the security amount under sub-section (7) was collected, has passed through the State, shall refund such security amount to the owner. (9) The prescribed authority may be an order adjust the whole. or any part of security amount towards any amount of tax or penalty payable under this Section by such owner. Explanation: In case where a vehicle owned by a person is hired for transportation of goods by some other person including a transporting or any other similar agency, both the persons shall for the purposes of this Section, be deemed to be the owner of the vehicle, and shall be jointly and severally liable to pay any amount of tax or penalty payable. ( 10 ) IT is no doubt true that the explanation, particularly as amended in the year 2004, provides that where the vehicle owned by a person is hired for transportation of goods by some other person including a transporting or any other similar agency, both the persons shall be deemed to be the owner of the vehicle, and shall be jointly and severally liable to pay any amount of tax or penalty payable etc. Even with this amendment, what is provided for is that the determination of liability can be joint i. e: both on the owner of the vehicle as well as the carrier of goods. Even with this amendment, what is provided for is that the determination of liability can be joint i. e: both on the owner of the vehicle as well as the carrier of goods. It is no doubt true that under this provision, the liability could have been determined even on M/s. Roshan Freight, Carriers (Kanpur), in terms of order dated 21-9-2004 on an occasion when their goods was being transported by said Palanivel owner of a vehicle in which such goods was being transported - but unfortunately the order which is sought to be relied upon for justifying the, present action on the part of the respondents, does not so fasten the liability jointly on the owner of the vehicle as well as the carrier - M/s Roshan Freight Carriers (Kanpur), but only on the owner of the vehicle namely Mr. Palanivel. In fact the carrier's name does not figure anywhere in this order. In terms of the order dated 21-9- 2004, the liability can only be on the owner of the vehicle' and not on any other person. Under such circumstance, the order dated 21-9-2004 cannot constitute the basis for detaining either the vehicle or the goods to insist upon the owner of the present vehicle namely the petitioner to furnish the security or to discharge the earlier tax liability in terms of the order dated 21-9-2004. ( 11 ) HOWEVER, the submission of Ms. Niloufer Akbar, learned Government Pleader is that the records indicate that the goods that were being carried by the vehicle which is the subject matter of order dated 21-9-2004 belongs to M/s Roshan Freight Carriers (Kanpur) and it is also on record that the goods that is being transporting by the petitioner in his vehicle also belongs to M/s Roshan Freight Carriers (Kanpur) and if so, the authorities are justified in detaining the vehicle of the petitioner. This argument, though appears to be plausible, cannot be accepted for the reason that the liability is one passed on a person under Section 28-AA (4) of the Act. It is by a deemed provision, namely that if any person fails to produce the transit pass within the time frame at the exit point, the goods are presumed to have been sold in the State and accordingly tax has to be assessed. It is by a deemed provision, namely that if any person fails to produce the transit pass within the time frame at the exit point, the goods are presumed to have been sold in the State and accordingly tax has to be assessed. Though under the explanation it can be both on the owner of the vehicle as also carrier who is transporting the goods. Until and unless the liability is actually determined and fastened on such persons by means of an order in this regard, it is not possible to fasten such liability in terms of the provisions by an analogy or by a process of logic. Such liability cannot be fastened on a person on whom it is not actually determined. In the present case, the liability was not being actually determined on M/s Roshan Freight Carriers (Kanpur), who is characterized to be the carrier and the owner or on whose behalf the goods were being carried. If that is the legal position though for the present purpose, M/s Roshan Freight Carriers (Kanpur), may also be the owner of the goods, which enables the authorities to not only detain the goods but also the vehicle, but as there is no assessment made on M/s Roshan Freight Carriers (Kanpur) earlier under the provisions of Section 28-AA (4) of the Act, the provisions of Section 28-AA (7) cannot be pressed into service for the purpose of detaining either the vehicle or the goods. ( 12 ) THE action on the part of respondents in detaining the goods as well as the vehicle of the petitioner is not authorized by law. The petitioner has been complaining, of interference with his business and considerable loss and hardship because of the unjustified detention of vehicle as well as goods. ( 13 ) IN the circumstances, Writ Petition is allowed and the impugned endorsement dated 30-12-2004 issued by the third respondent at Annexure-A to the Writ Petition is quashed by issuing a writ of certiorari. The respondents are directed to release the vehicle and the goods detained, forthwith by furnishing a transit pass in favour of the petitioner. Rule issued and made absolute. The respondents having become active to invoke a provision, which was not available and to the detriment of the petitioner, it is appropriate that they pay costs. Accordingly the respondents are directed to pay cost of Rs. 2,000/- to the petitioner. Rule issued and made absolute. The respondents having become active to invoke a provision, which was not available and to the detriment of the petitioner, it is appropriate that they pay costs. Accordingly the respondents are directed to pay cost of Rs. 2,000/- to the petitioner. --- *** --- .