Writ Petition No of 2003,1190 of 2003

18th July, 2003

Petitioner Counsel: SARVASRI J. P. CAMA,N. C. PATEL,M/s. SUNIL & Co.
Respondent Counsel: Ms. A. KALYANRAM

JUDGMENT

JUDGMENT :- Heard. Perused the records. There is absolutely no case for proceeding against the respondent No.3. Hence the petition against the respondent No.3 is rejected. The petition to be heard only against the respondent Nos.1 and 2.

2. Rule; by consent the rule is made returnable forthwith.

3. The petitioners are challenging the seizure of their vehicle along with the original documents regarding the registration thereof by the respondent-authorities and the refusal to release the same till the payment of the motor vehicle tax to the tune of Rs.1,62,000/-. By the order dated 2-5-2003 the vehicle was allowed to be released on depositing the amount demanded as tax.

4. Undisputed facts of the case are that the petitioners have their registered office at Mumbai with two manufacturing units situated at Daman, they being the exporters of bio-medical equipments to various countries. The petitioners own a Mercedes Benz Van bearing registration No.DD-03-B-1219, which is registered with the registering authority in the Union Territory of Daman. On 6-9-2000 the vehicle was checked by the enforcement squad of the respondent Nos.1 and 2 at Mumbai and thereafter the petitioners filed F.T. Form and paid the tax for the period from 6-9-2000 to 31-8-2001 on 24-9-2000. The said vehicle was again checked at Mumbai on 22-3-2003 and again 4-4-2003. On the basis that the vehicle was plying in the State of Maharashtra, for about nine months prior to the date of checking, without the payment of the motor vehicle tax, the same along with the registration document was seized by the respondents on 4-4-2003 and the request for release was rejected on the ground that the petitioners have to pay a sum of Rs.1,62,000/-, being one time tax in respect of the said vehicle, for having been used or kept for use in the State of Maharashtra.

5. It is the contention of the petitioners that the said vehicle was exclusively used in Daman and was rarely brought to Mumbai and therefore there was no liability to pay the motor vehicle tax to the respondents in relation to the said vehicle, which has been already subjected to registration and payment of such tax to the registering authority in the Union Territory of Daman and therefore the seizure of the vehicle as well as refusal to release the same till the payment of the motor vehicle tax, to the respondent No.2 is illegal and unwarranted and bad in law. Hence, the present petition.

6. While challenging the action of seizure of the vehicle and refusal to release the same till the payment of one time tax to the tune of Rs.1,62,000/- under the Bombay Motor Vehicles Tax Act, 1958, hereinafter called as "the Tax Act", the learned Advocate for the petitioner has submitted that the question of imposing the tax liabilities, and more particularly demand for one time tax, can not arise in respect of the vehicle in question in the facts and circumstances of the case, and in any case, the provisions of law contained in Section 3(1D)(c)(i) of the Tax Act, which are sought to be referred to as the provision of law under which the petitioners are said to be liable to pay the tax, do not apply at all, as the vehicle in question is not registered in the State of Maharashtra and the said provisions of law would apply only in case of registration of such vehicle in the State of Maharashtra, apart from the fact that, the vehicle having been already registered with the registering authorities at Daman, it can be required to be registered in the State of Maharashtra, only in case the vehicle is used or kept for use in the State for a period of more than 12 months in terms of Section 47 of the Motor Vehicles Act, 1988, hereinafter called as "the Central Act". On the other hand, the learned Assistant Government Pleader, appearing for the respondent Nos.1 and 2, referring to the undisputed facts of the case, and more particularly the fact that the vehicle was used in the State of Maharashtra, and also drawing attention to Section 3 of the Tax Act, submitted that every vehicle which is used in the State of Maharashtra or kept for use in Maharashtra can be subjected to payment of tax under the Tax Act and in case of default in payment of such tax, the authorities are entitled to seize the vehicle and in the facts of the case, the vehicle having been kept for use in the State of Maharashtra for nine months preceding the day of check-up, no fault can be found with the action taken by the respondent Nos.1 and 2 in the nature of seizure of the vehicle and refusal to release the same until the tax is paid in accordance with the provisions of law contained in the Tax Act.

7. The Section 3 of the Tax Act is a charging section which deals with the levy of the motor vehicle tax in relation to the vehicles used or kept for use in the State of Maharashtra. The sub-section (1) thereof provides that :-

"3(1) Subject to the other provisions of this Act, on and from the 1st day of April, 1958, there shall be levied and collected on all motor vehicles used or kept for use in the State, tax at the rates fixed by the State Government, by notification in the Official Gazette, but not exceeding the maximum rates specified in the First Schedule :"

The first proviso to the said section relates to liability of tax in case of motor vehicles with a dealer or manufacturer for the purpose of trade. The second proviso to the said Section deals with the liability of tax in relation to a private service vehicles and the explanation clause defines the expression "private service vehicle" used in the said Section. The said provision of law relating to the tax liability of the vehicles contained in the said Section 3 was subjected to a series of amendments, from time to time. Till 1987, the tax liability under the provision of the Section 3 was in the nature of payment of annual tax in relation to all the vehicles. However, in 1987 a concept of one time payment of tax in relation to motor cycles and tricycles was introduced by adding sub-section (1C) to the Section 3. Subsequently, it was also followed by applying similar rule to the other vehicles by incorporating the sub-sections (1D) and (1E) to the Section 3. In terms of the sub-section (1C) of the Section 3, motor cycles and tricycles kept for use in the State can be subjected to levy of one time tax for the life time of such motor cycle and tricycles, whereas in terms of the sub-section (1D), similar provision came to be made in relation to motor cars used or kept for use in the State, and similar provision is made in relation to goods carriages under the sub-section (1E) of the Section 3. However, one important aspect disclosed in relation to liability of payment of tax under the Section 3(1) in comparison with the other provisions contained in sub-sections (1C), (1D) and (1E) of the Section 3 is that while the liability to pay tax under the latter provisions i.e., (1C), (1D) and (1E) arises only consequent to registration of the vehicle in the State or assignment of registration mark in terms of the Section 47 of the Central Act, whereas the liability to pay the tax under the Section 3(1) can be without even such registration of the vehicle in the State or assignment of registration mark in terms of the Section 47 of the Central Act. The sub-sections (1C), (1D) and (1E) specifically refer to necessity of registration of the vehicles in the State under the sub-clauses (i) and (ii) of the Clause (a) of each of the said sub-sections to Section 3, and requirement of new registration mark on transfer of registration in the sub-clause (iii) of the Clause (a) of each of the said sub-sections. The sub-clause (i) of the Clause (a) of each of the sub-sections (1C), (1D) and (1E) relates to the cases where the vehicles are registered after the date of enforcement of the respective provisions of law, the sub-clause (ii) of those sub-sections refers to cases where the vehicles were already registered on the day on which those provisions of law had come into force, and the sub-clause (iii) of the Clause (a) of those sub-sections relates to those cases whereby a vehicle is registered in another State and thereafter, on transfer thereof, is brought in the State of Maharashtra and a new registration mark is assigned. As regards the sub-section (1) of the Section 3, there is no such pre-condition regarding registration of the vehicle in the State of Maharashtra of assignment of new registration mark under the Section 47 of the Central Act, for the purpose of imposition of tax thereunder and the only condition disclosed is that the vehicle must be used or kept for use in the State of Maharashtra.

8. Referring to the sub-section (1D)(c), it was sought to be contended on behalf of the respondent Nos.1 and 2 that the same would apply irrespective of the fact whether the vehicle is registered in the State of Maharashtra or not. The Clause (c) of the sub-section (1D) of the Section 3 of the Tax Act reads thus:-

"(c) Notwithstanding anything contained in clause (a), there shall be levied and collected the one time tax specified in Part I or Part II of the Third Schedule on a motor car or Omni bus -

(i) manufactured in India or imported into India and used or kept for use in the State by a person, not being an individual, local authority, a public trust, a university or an educational institution, at thrice the rate;

(ii) imported into India and used or kept for use in the State by a person, being an individual, a local authority, a public trust, a university or an educational institution, at twice the rate."

Since the clause (c), by itself does not speak of the necessity of registration of the vehicle in the State, it is sought to be contended that once a motor car is imported in India and used or kept for use in the State, the owner thereof can be held responsible to pay the tax either at thrice the rate or twice the rate, as the case may be. However, on the plain reading of the provision, it would disclose that the Clause (c) is part of the sub-section (1D) of Section 3. It merely relates to the modification or variation in the rate of tax, and that too on higher side, in comparison with those specified under the Clause (a) thereof, but it does not relate to the cases otherwise than where the vehicle is registered in the State. This is evident from the perusal of the Clause (a) of the sub-section (1D) itself, which reads thus :-

"(1D)(a) Subject to the provision of this Act, there shall be levied and collected on all motor cars and omni buses used or kept for use in the State, a one time tax for the life time of such vehicle :-

(i) if registered after the date of commencement of the Bombay Motor Vehicle Tax (Amendment) Act, 1997 (Maharashtra II of 1998), at the rates specified in Part I of the Third Schedule;

(ii) if already registered before the said date and on which tax is already paid under sub-section (1), at the rates specified in Part II of the Third Schedule;

(iii) if first registered in any other State and thereafter on transfer thereof in the State of Maharashtra, a new registration mark is assigned to the same, after the said date then having regard to the month of first registration in the other State, at the rate specified in Part II of the Third Schedule."

It is to be noted that the Clause (c) of the sub-section (1D) of the Section 3 is not an independent charging section, but it is the part of the sub-section (1D) and has to be read along with the main body of the sub-section (1D). Hence if one reads the Clause (c) of the sub-section (1D) along with the Clause (a) thereof, it would immediately reveal that the Clause (c) is a continuation of the main body of the sub-section (1D) and an exception to the general rule which is comprised under the Clause (a) thereof and that is revealed from the expression "Notwithstanding anything contained in clause (a) ....." and further that the sub-clauses (i) and (ii) of the Clause (c) merely relate to the difference in the rate of tax in comparison with the rate of tax leviable under the sub-clauses (i), (ii) and (iii) of the Clause (a) of the sub-section (1D). In fact, the sub-section (1D) with the Clauses (a) and (c) taken together is the charging section in relation to the motor cars and omni buses used or kept for use in the State in the form of one time tax. While the Clause (a) relates to all such cars and omni buses, the Clause (c) relates to specified cars and omni buses thereunder, with difference in rate of tax in relation to those specified cars and omni buses. Though it is a separate clause from the Clause (a), in fact, it is in the nature of proviso to the said Clause (a). It cannot be read independently of the Clause (a).

9. The Section 4 of the Tax Act deals with the method of payment of the motor vehicle tax under the Tax Act. In terms of the sub-section (1) of the Section 4, the tax leviable under the sub-section (1) of Section 3 shall be paid in advance by every registered owner or a person having possession or control of a motor vehicle either annually or for each quarter of a year as specified thereunder. The sub-section (2) of Section 4 deals with the payment of one time tax in terms of the sub-section (1C), (1D) and (1E) of the Section 3 of the Tax Act, and the same shall be paid, in case of motor vehicles referred to, as under :-

"(a) in sub-clause (i) of clause (a) of each of the sub-sections (1C), (1D) and (1E), at the time of registration;

(b) in sub-clause (ii) of clause (a) of each of the sub-sections (1C), (1D) and (1E), within one month from the date of expiry of the period for which the tax is paid under sub-section (1) of section 3; and

(c) is sub-clause (iii) of clause (a) of each of the sub-sections (1C), (1D) and (1E), at the time a new Registration mark is assigned to the vehicle in the State of Maharashtra."

This sub-section (2) of the Section 4, therefore, clearly reveals that the Clause (c) sub-section (1D) of the Section 3 of the Tax Act is nothing but the part of the Clause (a) of sub-section (1D) and it only provides higher rate of tax in case of specified motor cars and omni buses, while leaving the registration of such vehicles in the State or assignment of new registration mark under the Section 47 of the Central Act being pre-condition for exercising the power to impose levy of one time tax.

10. The Section 39 of the Central Act provides that no person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with Chapter IV and that the certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carries a registration mark displayed in the prescribed manner. The Section 41 prescribes the mode for registration of the vehicle. The Section 42 deals with the special provision for registration of motor vehicles of diplomatic officers etc. The Section 43 relates to the subject of temporary registration of the vehicles. The Section 44 requires the production of the vehicle before the registering authority at the time of registration. The Section 45 deals with the power of the registering authority to refuse the registration or renewal thereof. The Section 46 provides that subject to the provision of the Section 47 a motor vehicle registered in accordance with Chapter IV of the Central Act in any State shall not require to be registered elsewhere in India and a certificate of registration issued or in force under the Central Act in respect of such vehicle shall be effective throughout India. The Section 47 specially deals with the concept of new registration mark on removal of the vehicle to another State. The sub-section (1) thereof provides that when a motor vehicle registered in one State has been kept in another State, for a period exceeding twelve months, the owner of the vehicle shall, within such period and in such form containing such particulars as may be prescribed, apply to the registering authority, within whose jurisdiction the vehicle then is, for the assignment of a new registration mark and shall present the certificate of registration to that registering authority. It also requires production of certain documents specified therein. The sub-section (2) thereof provides that the registering authority on such application being made shall and after necessary verification assign the vehicle a new registration mark and shall in communication with the registering authority by whom the vehicle was previously registered, arrange for the transfer of the registration of the vehicle from the records of that registering authority to its own records. If the owner fails to make an application under sub-section (1) of the Section 47 within the period prescribed, the registering authority may, having regard to the circumstances of the case, and in exercise of powers under the Section 47(5), require the owner to pay, in lieu of any action that may be taken against him under Section 177, such amount not exceeding one hundred rupees as may be prescribed under the sub-section (7), provided that the action under Section 177 shall be taken against the owner where the owner fails to pay the said amount. The sub-section (7) thereof provides that for the purpose of sub-section (5), the State Government may prescribe different amounts having regard to the period of delay on the part of the owner in making an application under sub-section (1). The Section 49 deals with the requirement of information regarding the change of residence or place of business of the owner of the vehicle to the registering authority. There is also a provision for appeal under the Section 57 of the Central Act in relation to every order passed in the process of registration of the vehicle or refusal or cancellation thereof.

11. The Government of Maharashtra has framed the Maharashtra Motor Vehicles Rules, 1989 under the Central Act, hereinafter called as "the State Rules" and the Rules 54 and 54-A thereof, deal with the procedure in relation to the application to be filed under Section 47 of the Central Act. In terms of the sub-rule (3) of the Rule 54, the owner of a motor vehicle, which is registered in another State and is brought into or is for the time being kept in the State of Maharashtra, shall intimate to the registering authority in whose jurisdiction the vehicle is kept for use in Form F.T. of the First Schedule within seven days from the date of entry of the motor vehicle in the State. The sub-rule (4) thereof provides that if the owner of the motor vehicle or the person in possession of the motor vehicle fails to apply for the assignment of new registration mark under sub-section (1) of Section 47 of the Central Act, he shall be liable to pay the amount of fifty rupees for the default for first month and twenty-five rupees for the default of subsequent months, if continued.

12. The Government of Maharashtra has also framed the Bombay Motor Vehicles Tax Rules, 1959 under the Tax Act and hereinafter called as "the Tax Rules". In terms of the Rule 21 of the Tax Rules, a declaration is required to be submitted in respect of the vehicles brought into the State of Maharashtra and it provides that "any person (a) who keeps a motor vehicle into the State and kept it for use therein, or (b) who keeps a motor vehicle outside the State but ordinarily uses such motor vehicle in the State, shall within seven days of the entry of the motor vehicle into the State or of the commencement of such use, as the case may be, deliver or cause to be delivered to the nearest Taxation Authority a declaration in Form 'FT'. The Rule 23 provides that " Where on receipt of declaration in Form 'FT', the Taxation Authority is satisfied that the vehicle in respect of which such declaration is made is exempted from the payment of tax, or that the amount of tax due in respect of such a vehicle has been paid, it shall issue a certificate of taxation and make an endorsement of exemption of tax payment, in the said certificate, and also issue a receipt for the payment received, provided that no certificate of taxation may be issued in respect of a visiting vehicle intended to be used in the State for less than a year from the date of arrival in the State."

13. Perusal of the above referred provisions of law would reveal that it is only in case of vehicle which is registered in another State and intended to be used or kept for use in the State of Maharashtra for a period exceeding twelve months, then the owner of the vehicle is liable to submit declaration for assignment of new registration mark in the Form F.T. of Schedule-I within seven days from the date of entry of the motor vehicle in the State and such form being submitted, the authorities will have to deal with the same in terms of the Rule 23 of the Tax Rules. Only on submission of such form, the question of assigning of the new registration mark could arise, and in which case there would be a liability to pay the one time tax in terms of the provision contained in the sub-section (1C), (1D) or (1E), as the case may be. In case the vehicle is to be kept for use for less than twelve months, the question of submission of declaration for assignment of new registration mark cannot arise and this is clear from the reading of the Section 47 of the Central Act along with the Rule 54 of the State Rules and the Rules 21 and 23 of the Tax Rules. Undoubtedly, a vehicle which is used in the State or kept for use for less than twelve months can also be subjected to tax in terms of the Section 3(1) of the Tax Act, provided it has been used for more than thirty days in the State of Maharashtra. However, by no stretch of imagination, the owner of the vehicle can be called upon to pay one time tax in relation to the vehicle which is neither intended to be kept for use nor is either actually kept or used in the State for more than twelve months.

14. The liability to pay the tax under the Section 3(1) and in terms of the Schedule applicable thereto, would arise in view of the necessity to inform the registering authority about the use of the vehicle in the State beyond the specified period and the provision regarding the liability to pay the tax pertaining to use of such a vehicle in the State of Maharashtra. This is also evident from the undisputed fact that statutes pertaining to the motor vehicles tax framed by the different States in the country contain the necessary provision for refund of the tax paid to that State on registration of the vehicle for the period during which the vehicle is informed to be not in use in that particular State or that same is used outside that State.

15. In terms of the Section 4(2) of the Tax Act, the vehicle on registration in the State of Maharashtra can be subjected to liability of payment of one time tax while the Section 4(1) of the Tax Act relates to annual or quarterly payment of tax. According to the Clause (a) of the Clause (iv) of the sub-section (1) of the Section 4 of the Tax Act, the tax can be paid for a minimum period of one month. In terms of the Section 9(1) of the Tax Act, if the vehicle is not used in the State of Maharashtra for thirty days or more, the owner thereof can ask for refund of the tax for such period during which it was not in use in the State of Maharashtra. In the case of Union Territory of Daman and Diu, the Section 4 of the G.D.D. Motor Vehicles Tax Act, 1974 provides that the tax shall be payable for a minimum period of three months while the refund can be claimed under the Section 9 thereof in the case the vehicle is not used in the Union Territory of Daman and Diu for a period of thirty days or above. Of course, the refund shall be for the period during which the vehicle is not in use in the Union Territory of Daman and Diu provided that such non-user should be at least for thirty days or above. These provisions of law r/w the Section 39, 46 and 47 of the Central Act would disclose that once a vehicle is registered in a State and the tax is paid in accordance with the taxing statute in force in that State, the vehicle can be used in any other State or Territory of India, but in case such a vehicle is used or kept for use in such other State or the Union Territory of India for thirty days or more, the owner or the person in charge of such vehicle should pay the tax for such period to such other State or Territory in accordance with the taxing statute in force in such other State or Territory for that period and he can claim refund for the same period from the State in which the vehicle is registered. However, when such use or keeping for use of the vehicle exceeds twelve months then the owner or the person in charge of the vehicle should take steps to transfer the registration mark of the vehicle in such other State and consequently the taxing authorities of such other State pursuant to new registration mark being assigned, can demand one time tax payment from the owner or the person in charge of the vehicle in accordance with the provisions of taxing law in force in such other State and thereupon the owner or such person can claim refund of the tax for remaining period from the taxing authority of the State in which the vehicle was originally registered, albeit the refund shall be restricted to the balance period in accordance with the provisions of law in that regard in that State.

16. It is also to be noted that there is a provision for breathing period to discharge the liability in relation to payment of tax provided to the owner of the vehicles under the provisions of the Tax Act and the power for seizure or detention of the vehicle cannot be exercised without affording sufficient opportunity to the owner of the vehicle to clear the dues pertaining to the tax. This is apparent from the provision of law contained in the Section 12-A and 12-B of the Tax Act and the Rules 8 and 18 of the Tax Rules. The Section 12-A speaks of restrictions on the use of motor vehicles in certain cases and provides that no motor vehicle used or kept for use in the State shall be used on any road in the State in case any tax payable in respect thereof remains unpaid more than thirty days after it has become due under the provisions of the Tax Act, until the tax and interest, if any, due is paid. The Section 12-B of the Tax Act pertains to the power to seize and detain motor vehicle in case of non-payment of tax and it provides that without prejudice to the provisions of the Sections 12, 12-A and 16 of the Tax Act, where any tax due in respect of any vehicle has not been paid as specified in the Section 4, such officer not lower in rank than that of an Inspector of Motor Vehicles of the Motor Vehicles Department or an Inspector of Police of the Police Department, as the State Government may empower in that behalf, may, subject to rules made in that behalf, seize and detain the motor vehicle in respect of which the tax is due under the Tax Act, and for that purpose, take or cause to be taken all steps for the proper maintenance and safe custody of the vehicle, until the tax and interest, if any, due in respect of the vehicle is paid and may provide for charges, if any, to be recovered for the custody and maintenance of the vehicle. In terms of the Rule 8(iv) of the Tax Rules, a declaration is to be delivered within seven days of the date from which the vehicle is liable to be taxed or on demand by the taxing authority whichever is earlier. The Rule 18-A of the Tax Rules pertains to procedure for seizure and detention of the motor vehicles in case of non-payment of tax. In terms of the sub-rule (1) of the Rule 18-A thereof, where an officer authorised by the State Government under the Section 12-B has reason to believe that the tax payable in respect of any motor vehicle has remained unpaid for more than thirty days after it has become due, such officer, by an order in the Form 'DA' and served on the registered owner or the person in possession or control of such vehicle or its driver, seize the motor vehicle. After such order is made, the authorised officer shall direct that the vehicle be taken to the nearest police station mentioned in such order, for detention. In terms of the sub-rule (2) of Rule 18-A of the Tax Rules, if the registered owner of the motor vehicle so seized and detained or his representative duly authorised by him in writing, if present, fails to pay the tax and present, if any, due or to produce necessary proof of payment of tax and interest, if any, before the expiry of ten days from the date of the seizure, the taxation authority shall cause the vehicle to be further detained till the tax and interest, if any, due is paid or proof of payment of the tax and interest, if any, due is furnished. Where no such payment is made or proof of payment produced within reasonable period after the expiry of the period aforesaid, the taxation authority shall forward a certificate of recovery of the tax and interest, if any, as arrears of land revenue to the Collector of the district in which the registered owner of the vehicle resides. The sub-rule (3) thereof provides for release of the vehicle on production of the proof of payment of tax.

17. As already seen above, if one peruses the provisions relating to the requirement of registration of vehicle under the Central Act as well as the Motor Vehicles Tax Acts passed by various States in the country, there is a specific provision found in such Acts empowering the owners of the vehicles to claim refund of the one time tax paid by them for the period during which the vehicle is not found to have been used or kept for use in such State where the vehicle is registered and/or for the period for which such a vehicle is used or kept for use in another State. While the Section 9 of the Tax Act deals with the matters pertaining to the refund claims under the Tax Act in relation to the vehicles which are subjected to the payment of one time tax or tax in advance in the State of Maharashtra, similarly, the provision for refund claim is to be found in the Section 9 of the Goa, Daman and Diu Motor Vehicles Tax Act, 1974 which is in force in the Union Territory of Daman. This apparently discloses that there is no provision for double taxation under the scheme of taxation for vehicles under the State Motor Taxation Acts for motor vehicles and the owner is not liable to pay tax pertaining to a vehicle to the State wherein such vehicle is registered as well as to the State where the vehicle is in fact used or kept for use, at one and the same time and for the same period. If the contention of the respondents is accepted in relation to the meaning of the Clause (c) of the sub-section (1D), it would virtually amount to compelling the owner of a vehicle to pay tax to more than one State at one and the same time, inspite of the fact that the vehicle can be used or kept for use in only one State at a time. Physically, it is impossible to have same vehicle at two places at one and the same time. It cannot be disputed that such a tax is essentially for having used or kept for use the vehicle in a particular State. Being so, unless the vehicle is used in a particular State, the question of asking the owner of the vehicle to pay the tax in relation to such vehicle cannot arise considering the provisions of law in force in that regard.

18. Applying the relevant provisions of law to the facts of the case in hand, it is apparent that the petitioner had submitted the Form F.T. on 24-9-2002 and had paid the tax for the period 6-9-2000 to 31-8-2001. The tax amount paid was Rs.2,700/- being the amount for the period of one year along with the interest on account of late payment of tax of Rs.1,350/-. It is not the case of the respondents that pursuant to the submission of the Form F.T. on 24-9-2002, it was beyond the period for which the tax was paid and accepted by the respondent-authorities that there was any case for assigning of a new registration mark or transfer of the registration, so as to conclude that the vehicle in question was used in the State of Maharashtra even beyond the period of 31-8-2001. The case of the respondent-authorities themselves, as disclosed from the affidavit in reply, is that "Vehicle No.DD-03-B-1219 was first checked on 6th September, 2000 by the officers of respondent No.1. Checking report No.2393895 dated 6-9-2000 was issued for non-payment of BMV tax. Thereafter, on 24-9-2002, the owner of the vehicle filed Form FT and paid tax for the period 6-9-200 to 31-8-2001. The tax amount was Rs.2700/- and the interest amount was Rs.1350/-. This clearly shows that the vehicle is regularly plying in Maharashtra State and therefore the owner paid tax thereon. The said vehicle is not the visiting vehicle. "While confirming the fact that though the Form F.T. was filed on 24-9-2002 in relation to the period from 6-9-2000 to 31-8-2001, it is not the case of the respondents that after 31-8-2001 the vehicle was plying in the State of Maharashtra and for that reason any action was taken by the respondents, as was required under the Section 47 of the Central Act r/w Rules 54 of the State Rules and Rule 23 of the Tax Rules. In case petitioners were plying the vehicle in the State of Maharashtra after 31-8-2001, there is also no explanation as to what prevented the respondent-authorities from taking necessary action against the petitioners, in accordance with the provisions of law. Only conclusion which can be drawn in the facts and circumstances is that after 31-8-2001 there was no cause for the respondents to take action in terms of Section 47 of the Central Act r/w Rules 54 of the State Rules and Rule 23 of the Tax Rules. In the back ground of these facts, the legality and the propriety of the action on the part of the respondents in the matter of seizure of the vehicle on 4-4-2003, and demand for one time tax in respect of the vehicle in question is to be tested and considered.

19. The record clearly discloses that the vehicle was checked on 23-3-2003. However, it nowhere discloses that during the period from 31-8-2001 to 22-3-2003 the respondents had any time checked and/or spotted the vehicle in question in any part of the State of Maharashtra. It is sought to be contended that there are only two enforcement squads of the respondent No.1 who check the vehicles on the public road for about 4 to 5 hours a day. Absence of necessary infrastructure with the respondents to check the vehicles in the State cannot be a justification to draw any adverse inference against the owners of the vehicles having registration in other States to the effect that moment they are brought in the State of Maharashtra, it should be presumed to have been in use in the State of Maharashtra for more than twelve months or that once having used the vehicle in the State of Maharashtra for twelve months, it is to be presumed that the same must have been used even thereafter in the State of Maharashtra. Neither there is any provision of law in the Tax Act or in the Central Act in that regard, nor even the facts of the case placed before this Court warrant any such conclusion to be drawn in the matter.

20. As already observed above, after 31-8-2001 the vehicle in question was checked in the State of Maharashtra on 22-3-2003 and thereafter on 4-4-2003. Certainly it can be concluded from these facts that the vehicle was in the State of Maharashtra from 22-3-2003 for a period extending seven days. Undoubtedly, in terms of the Section 47 of the Central Act r/w rule 54 of the State Rules, in case of failure on the part of the owner to inform the registering authority in the manner prescribed under the law, after having used the vehicle for seven days in the State of Maharashtra, the liability at the most can be in terms of the Section 47(5) and (7) r/w the Section 177 of the Central Act r/w the Rule 54(4) of the State Rules r/w the Section 12-A and 12-B of the Tax Act. Certainly in such cases, there can neither be seizure of the vehicle nor insistence for continuation of the seizure of the vehicle unless the owner pays the tax in terms of the Section 3(1D)(c) of the Tax Act. Besides, even if there was any liability to pay the tax, certainly the petitioner should have been given time to clear the dues in terms of the Section 12-A of the Tax Act. However, that too after the necessary decision on the point as to whether the vehicle is a visiting vehicle in which case there cannot be any liability to pay the tax. Undisputedly, in the case in hand, there has been no such investigation made by the respondents. Merely because the vehicle was checked and found to be in the State of Maharashtra on 22-3-2003 and thereafter on 4-4-2003, the respondents proceeded to seize the vehicle without even granting the time to the petitioners to pay the tax. As seen above, the Section 12-A of the Tax Act clearly provides thirty days time to clear the tax dues from the date it becomes due and payable. It is not the case that the respondents had investigated in the matter to ascertain whether the vehicle was in the State of Maharashtra prior to the day when it was checked for the first time on 22-3-2003 except proceeding to conclude about the same on the basis of the information alleged to have been furnished to the respondents by the driver of the vehicle. Admittedly, there is no recording of that statement of the driver of the vehicle in the regard nor it is placed before this Court along with the affidavit in reply. Admittedly, no statement of the petitioners has been recorded in that regard. The matter being relating to the liability of tax, the minimum that was expected from the respondents in that regard was to have proper investigation before insisting for payment of tax by the petitioners and thereafter to grant time to the petitioners to pay the tax in terms of the provisions contained in Section 12-A, before taking any coercive measure. The action of seizure of the vehicle therefore is clearly in a high handed manner by the respondents and cannot be sustained in law.

21. In the result, therefore, the petition succeeds. The action on the part of the respondent pertaining to the seizure of the vehicle, in the facts and circumstances of the case, is held to be bad in law and while confirming the interim order of release of the vehicle, the respondents are directed to release the original documents forthwith to the petitioner. However, it is made clear that this decision will not preclude the respondent from taking an appropriate action, in accordance with the provisions of law, in relation to tax liability, if any of the petitioners in respect of the vehicle and to take appropriate steps in that regard, in accordance with the provisions of law. The rule is made absolute accordingly with no order as to costs.

22. At this stage, the learned A.G.P. prays for stay of operation of the order passed today. There is absolutely no case for stay of the order passed today. Hence, the request for stay is rejected. However, the petitioners shall not remove the vehicle from the territory and the limits of the State of Maharashtra and/or the Union territory of Daman and Diu, without prior intimation to the respondent Nos.1 and 2, for a period of eight weeks from today.

All concerned to act on the ordinary copy of this order duly authenticated by the Associate/P.S. of this Court as a true copy.

Petition allowed.