JUDGMENT ARUN MISHRA, J. - The petitioner has prayed for the relief in the instant petition to declare section 45A of the M.P. Commercial Tax Act, 1994 as ultra vires and quash notice (P4) issued in form No. 76 dated December 9, 2003 and the penalty imposed as per order under section 45A(12) of the Commercial Tax Act dated December 10, 2003. Prayer has also been made to direct the respondents to release the vehicles. Further prayer has been made that provision of section 45A of the M.P. Commercial Tax Act, 1994 cannot be invoked while the goods are being transported into the State of M.P., by way of sale or purchase or by way of consignment of goods in the course of inter-State trade or commerce or when the transportation of goods is not pursuant to or in the course of any sale taking place in the State of M.P. The petitioner has submitted that the petitioner is a company involved in the business of manufacture and sale of cigarettes and smoking mixtures. The company has entered into an agreement with Reliable Cigarette and Tobacco Industries, Mandi Deep, Bhopal, for manufacture of cigarettes. As per the agreement the petitioner - company is required to supply all necessary raw materials to the job-work manufacturer. The petitioner - company through its branch at Bhopal causes entry of all the raw materials including packing materials. Throughout the entire process the ownership of the raw materials including packing materials and also of the finished goods at all times remain with the petitioner - company. The petitioner is purchasing raw material through its factory-cum-administrative office at Saharanpur (U.P.). The raw material is consigned to the petitioner's own factory as well as job-work manufacturers at different places in India including Reliable Cigarette and Tobacco Industries. For the purpose of consumption in manufacturing, cut tobacco was dispatched after processing by ITC Limited, Bangalore. It was consigned to Reliable Cigarette and Tobacco Industries (hereinafter referred to as, "the RCT") in three trucks bearing registration Nos. MP-09-K2795, MP-04-K3471, MKM-7117 complete with proper documents including form No. 75 issued by the Commercial Tax Officer, Circle - 5, Bhopal. For the purpose of consumption in manufacturing, cut tobacco was dispatched after processing by ITC Limited, Bangalore. It was consigned to Reliable Cigarette and Tobacco Industries (hereinafter referred to as, "the RCT") in three trucks bearing registration Nos. MP-09-K2795, MP-04-K3471, MKM-7117 complete with proper documents including form No. 75 issued by the Commercial Tax Officer, Circle - 5, Bhopal. The petitioner has further submitted that the Check-post Officer at Rajna, District Chhindwara stopped the aforesaid three vehicles for an inspection and verification and issued impugned show-cause notice in respect of all the three trucks requiring the petitioner to show cause that why the penalty should not be imposed under section 45A(12) of the Commercial Tax Act for alleged violation of provisions of section 45A of the Commercial Tax Act. The truck MOD-6468 which was carrying packing material from the manufacturers depot of the petitioner's paper-board and speciality papers division, located at Guntur (A.P.) for the purpose of consumption by RCT, Bhopal for packing of the manufactured product; to make it ready for sale, all necessary documents including form No. 75 issued by the Commercial Tax Officer, Circle 5, Bhopal were accompanying the vehicle. In one of the cases, the Commercial Tax Officer has imposed penalty of Rs. 3,50,000 vide order dated December 10, 2003 for alleged violation of section 45A of the Commercial Tax Act. The petitioner has submitted that section 45A of the Commercial Tax Act, 1994 authorises the check-post authorities to verify the transport documents and check the vehicles including the nature of goods transported, quantity and its value before allowing the vehicles to pass through the check-post. If any discrepancy is found or it is apprehended by the check-post authority that there is possible tax evasion then check-post authority is authorised to detain the vehicle and in absence of proper form No. 75 the goods vehicle may be seized, a show-cause notice for imposing the penalty may be issued and after obtaining necessary clarifications if the check-post authority is not satisfied in that case penalty is imposed under section 45A(12) of the Commercial Tax Act, 1994. In this case the cut tobacco is not subject to tax since it is liable for payment of additional excise duty. The cut tobacco is a perishable item. The check-post authority therefore has acted in violation of the provisions contained in section 45A of the Commercial Tax Act. In this case the cut tobacco is not subject to tax since it is liable for payment of additional excise duty. The cut tobacco is a perishable item. The check-post authority therefore has acted in violation of the provisions contained in section 45A of the Commercial Tax Act. It is submitted that in show-cause notice issued in form No. 76 the Check-post Officer has alleged that the buyer of cut tobacco is RCT whereas RCT is an additional place of business of the petitioner as a job-work contractor for manufacturing of cigarettes. The goods consigned to RCT at no point of time belongs to RCT. The RCT under the agreement dated April 25, 2000 is only a bailee of the goods supplied by the petitioner to be used for the purpose of manufacture of cigarettes. The petitioner's emphasis is on additional place of business. There was no sale made to RCT. Commissioner of Commercial Tax of M.P., as per his circular dated May 29, 2002 had issued a clarification that for availing CENVAT under the Central Excise Rules the name on the bill/invoice may be different than that of the actual buyer. It was thus clarified that form No. 75 should not be refused only on the ground that name in the invoice mentioned as buyer and consignee are different. There was no illegality/irregularity in the form of declaration submitted by the petitioner. Assessments were made which indicated that RCT was not the purchaser. It is further submitted that under the guise of evasion of tax State lacks legislative competence to enact the provision like section 45A. Section 45 does not authorise to intercept the goods, when the goods were not meant for sale and being transported by truck. Thus, section 45A is beyond legislative competence as matter of excise is under the power of Union of India under article 246 of the Constitution read with entry 54 of List II of the Seventh Schedule to the Constitution. Goods are not liable for tax under the provisions of the M.P. Commercial Tax Act. Show-cause notice and proposed recovery of penalty is without authority of law under article 246 of the Constitution of India. Goods are not liable for tax under the provisions of the M.P. Commercial Tax Act. Show-cause notice and proposed recovery of penalty is without authority of law under article 246 of the Constitution of India. Section 45A of the Act cannot be invoked unless the goods sought to be seized have in fact been sold within the State of M.P. Reliance has been placed on the decision of the apex court in Check-post Officer, Coimbatore v. K.P. Abdulla and Bros. [1971] 27 STC 1. Counsel has also relied upon Atiabari Tea Co. Ltd. v. State of Assam AIR 1961 SC 232 to contend that it is the free movement or the transport of goods from one part of the country to the other that is intended to be saved and, if any Act imposes any direct restrictions on the very movement of such goods it attracts the provisions of article 301 and its validity can be sustained if it satisfies the requirement of article 302 or article 304 of Part XIII of the Constitution. In the return filed by the respondents, it is contended that the cut tobacco is not taxable under the Commercial Act but the same is taxable under the Entry Tax Act, 1976. With specific reference to section 13 of the Entry Tax Act details that certain sections of the Vanijyik Kar Adhiniyam and the Rules made and orders and notifications issued thereunder shall mutatis mutandis applied to a dealer or person in respect of entry tax levied and payable under the Act as if these sections were mutatis mutandis incorporated. Section 45 of the Commercial Tax Act is also included under the provisions of the Entry Tax Act. Cut tobacco is notified goods as per notification dated May 6, 2002. Notification came into force with effect from 2002. Facts have also been disputed by the respondents. They have contended that on November 29, 2003 a truck bearing No. MOD-6468 was stopped and thereafter the remaining 3 trucks carrying cut tobacco were stopped at the check-post on December 7, 2003 by virtue of notification dated May 6, 2002 and powers envisaged thereunder. It was found that the truck bearing No. MOD-6468 carried form No. 75 in the name of ETC Limited, Plot No. 8, 3rd Floor Ranjeet Tower, Zone 2, M.P. Nagar, Bhopal bearing TIN No. 23174001316 (i.e., the tax identification number). It was found that the truck bearing No. MOD-6468 carried form No. 75 in the name of ETC Limited, Plot No. 8, 3rd Floor Ranjeet Tower, Zone 2, M.P. Nagar, Bhopal bearing TIN No. 23174001316 (i.e., the tax identification number). Only the person to whom the form No. 75 is issued can be a consignor. Whereas the sale invoice accompanied with form No. 75 mentions that the name of the consignee is Reliable Cigarettes and Tobacco Industries Pvt. Limited, Mandideep and also the name of buyer and dealer contains ITC Limited, 306, Sardar Patel Marg Post Office, Box 25, Saharanpur, U.P., the builty of OTS Limited mentions that the consignee is M/s. Reliable Cigarettes and Tobacco Industries Limited, Mandideep and way-bill issued by the Commercial Tax Department, Andhra Pradesh where the name of the addressee is ITC Limited, Guntur and the name of the consignee is Reliable Cigarettes and Tobacco Industries Limited. It is strange that the name of ITC, Bhopal except in the form No. 75 is missing in each and every document. Apart from this the sale invoice mentions the sales tax number of Reliable Cigarettes and Tobacco Industries Ltd., the way-bill dated November 27, 2003 of ITC, Guntur mentions the commercial tax number of ITC, Saharanpur and out of the blue the petitioners in the entire petition are claiming as if the consignee was ITC, Bhopal which is nowhere reflected in any of the documents. Other strange aspect of the entire transaction is that if the packing material was loaded for ITC, Saharanpur, U.P., then how Reliable Cigarettes and Tobacco Industries Limited became consignee and the strangest question is as to how the ITC, Bhopal is having over all claim over the goods. Therefore, after giving due opportunity section 45A(7)(c) became applicable as it was found that if not proved contrary then the evasion of tax was being effected by either the petitioner or the Reliable Cigarettes and Tobacco Industries Limited, both of them are separate entities as both of them have their own sales tax number. It is further submitted that so far as the matter of three other trucks carrying cut tobacco is concerned it is respectfully submitted that the matter stands in the same shoes that of the previous one except the fact that there is no mention of ITC, Saharanpur, and that in these cases the cut tobacco was dispatched from ITC, Bangalore. It is further submitted that so far as the matter of three other trucks carrying cut tobacco is concerned it is respectfully submitted that the matter stands in the same shoes that of the previous one except the fact that there is no mention of ITC, Saharanpur, and that in these cases the cut tobacco was dispatched from ITC, Bangalore. In the additional return filed by the respondents it is further contended that section 45A of the Commercial Tax Act is pari materia with the provisions of sections 29A, 29B and 29C of the Madhya Pradesh General Sales Tax Act, 1958. The constitutional validity of the provision under the M.P. General Sales Tax Act has already been upheld by this court in Build-worth Private Ltd. v. Sales Tax Officer [1997] 106 STC 365; [1996] 29 VKN 482. It is submitted that if the goods were being transported for head quarter, Saharanpur then there was no need for the petitioner to submit declaration form No. 75 in which the delivery point was mentioned ITC Ltd., Bhopal, whereas in other papers which were seized from the truck it was found that delivery point was shown as Reliable Cigarettes and Tobacco Industries, Mandideep, Bhopal, as apparent from document (RA 2 and RA 3) that the petitioner had intention to evade the payment of tax. Petition is premature, only show-cause notices have been issued. Shri G. N. Purohit, learned Senior Counsel, has submitted that section 45A of the Commercial Tax Act is ultra vires as it put a fetter as per inter-State trade and tends to levy excise on production, it authorises to intercept the vehicle on which tax could not be realised under the Commercial Tax Act. The goods were in the process of manufacture, consequently, it was not open to take action under section 45A of the Commercial Tax Act, 1994. He has also submitted that in section 13 of the Entry Tax Act provision of section 45A was inserted by way of Ordinance, 1994. The show-cause notices issued earlier in 1993 under section 45A were without authority. Counsel has further submitted that since request form/documents were submitted in compliance with provisions of section 45A of the Commercial Tax Act, the action of the authority to intercept the vehicle was unauthorised particularly considering previous transactions where no such action on similar papers was taken. The show-cause notices issued earlier in 1993 under section 45A were without authority. Counsel has further submitted that since request form/documents were submitted in compliance with provisions of section 45A of the Commercial Tax Act, the action of the authority to intercept the vehicle was unauthorised particularly considering previous transactions where no such action on similar papers was taken. The assessment of ITC, Bhopal, was made on the basis of goods for the purpose of entry tax on the basis of similar transaction. Shri G. N. Purohit, learned Senior Counsel, has further submitted that the decision of the apex court in Sodhi Transport Co. v. State of U.P. [1986] 62 STC 381 runs contrary to the dictum of the decision of the apex court in Check-post Officer v. K.P. Abdulla and Bros. [1971] 27 STC 1 rendered in the context that the Madras General Sales Tax Act, 1959, section 42(3), declared to be invalid. Consequently the Division Bench decisions of this court and the decision of the apex court in Sodhi Transport Co. [1986] 62 STC 381 does not lay down the correct law hence requires reconsideration. Shri V. K. Shukla, learned Deputy Advocate - General appearing on behalf of the State has submitted that it is disputed question of fact whether goods transported were being in the course of manufacture or goods were in fact sold as apparent from discrepancy in the name of purchaser, consignee and consignor. Thus, the action taken was within the competence of the authority as per notification issued dated May 6, 2002. At this stage there is no case for interference is made out. With respect to vires of section 45A, he has relied upon two Division Bench decisions of this court in Buildworth Private Ltd. v. Sales Tax Officer [1997] 106 STC 365; [1996] 29 VKN 482, Bhoruka Roadlines Pvt. Ltd. v. Sales Tax Officer [1995] 28 VKN 202 and decision of the apex court in Sodhi Transport Co. v. State of U.P. [1986] 62 STC 381. First coming to question of vires. It is not in dispute that section 45A of the Commercial Tax Act, 1994 is pari materia to section 29A of the M.P. General Sales Tax Act. v. State of U.P. [1986] 62 STC 381. First coming to question of vires. It is not in dispute that section 45A of the Commercial Tax Act, 1994 is pari materia to section 29A of the M.P. General Sales Tax Act. Vires of the provision was examined in two Division Bench decisions of this court in Buildworth Private Ltd. v. Sales Tax Officer [1997] 106 STC 365; [1996] 29 VKN 482 and Bhoruka Roadlines Pvt. Ltd. v. Sales Tax Officer [1995] 28 VKN 202. The aforesaid provision is also pari materia to the provision of the U.P. Act which was considered by the apex court in Sodhi Transport Co. v. State of U.P. [1986] 62 STC 381 the vires of the similar provision was upheld. We are bound by the decision of the apex court and the aforesaid two decisions rendered by the Division Bench of this court. In Check-post Officer v. K.P. Abdulla and Bros. [1971] 27 STC 1 (SC) scope of matters ancillary or incidental to the power to impose sales tax was examined. In the instant case provision of the Commercial Tax Act as well as Entry Tax Act comes into play and it is not disputed that the entry tax is liable to be paid. Consequently, liability to pay entry tax is not disputed. It is also not disputed that in case goods have been sold within the State of M.P., transaction would be liable to Commercial Tax Act. Thus, in our opinion, the decision in Check-post Officer v. K.P. Abdulla and Bros. [1971] 27 STC 1 (SC) was rendered in different context and provision of section 45A of the M.P. Commercial Tax Act cannot be declared ultra vires on the strength of the aforesaid decision, particularly, in view of the decision of the apex court in Sodhi Transport Co. Ltd.'s [1986] 62 STC 381 and two decisions of the Division Bench in Buildworth Private Ltd. v. Sales Tax Officer [1997] 106 STC 365 (MP); [1996] 29 VKN 482 and Bhoruka Roadlines Pvt. Ltd. v. Sales Tax Officer [1995] 28 VKN 202. Coming to facts of the instant case it is a disputed question of fact whether the goods were being transported, during the course of production or in fact sale has taken place. In show-cause notice it was mentioned that the purchaser was shown as RTC. Coming to facts of the instant case it is a disputed question of fact whether the goods were being transported, during the course of production or in fact sale has taken place. In show-cause notice it was mentioned that the purchaser was shown as RTC. In form No. 75 which was issued, consignee was shown as ITC. On facts, this question was required to be decided by the authority issuing the notice whether there was sale, or it was a case of transportation during the course of production. It could not be said that the action was unauthorised, particularly in view of the notification dated May 6, 2002. Thus, it cannot be said that the issuance of the notice in the facts and circumstances of the case was without jurisdiction. In one of the cases penalty order was passed and since there was interim stay granted by this court on October 19, 2003 it is submitted that an appeal has not been preferred against imposition of penalty. Later on the interim order was modified and the penalty was deposited. However, due to pendency of the writ petition, appeal was not preferred against the order of imposing penalty passed in one of the cases. In the circumstances the question of determination of factual matrix is required. No case is made out to make interference in the show-cause notice and the penalty order (P9) dated December 10, 2003. The petitioner is given 30 days' time to prefer an appeal which is also the prescribed period of limitation. In case the petitioner prefers an appeal within 30 days, the same shall be treated within limitation by the appropriate authority as agreed to by Shri V. K. Shukla, Deputy Advocate - General. The petitioner is free to raise all objections in the reply/additional reply to the show-cause notice to be filed in 30 days with respect to tenability of the show-cause and a considered and reasoned decision will be rendered by the concerned authority. The provision of section 45A is held to be intra vires. The petition is disposed of with the aforesaid directions. No costs.