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2015 (9) TMI 360

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....le (truck) and goods and refund of the amount of penalty recovered. The petitioners have also challenged the constitutional validity of Section 60(4) of the 2005 Act and of the Notification dated 4th July 2012 issued in exercise of power conferred by Section 93(1) of the 2005 Act and of Notifications dated 12th July 2012 and 30th October 2012 issued by the Commissioner of Commercial Taxes in exercise of power conferred by Rule 40(2) of the Bihar Value Added Tax Rules, 2005 as amended by Government Notification dated 4th July 2012. The facts common to these writ petitions are that the petitioners are the transporters and the owners of the vehicle (truck)/the goods concerned. On the fateful day, the petitioners were transporting the goods of the consigners in one State to the consignees in the other State. While carrying the goods from one State to the other, the concerned truck had to travel through the territory of the State of Bihar. While entering the State of Bihar the truck driver or the person in-charge of the goods was required to furnish particulars of the consignment, the consigner/s and the consignee/s, and the places from where and to which the goods were carried....

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....osed upon the petitioner. Pursuant to the said order, the demand notice for recovery of the sum of Rs. 2,80,662/- has been issued on 2nd December 2012 by the Commercial Taxes Officer, Dobhi Check Post, Gaya. The F.I.R. was lodged for the alleged offence punishable under the 2005 Act and under Sections 415, 420, 406, 407, 409 and 120B IPC. In CWJC No. 1630 of 2013, the vehicle involved is the truck bearing registration no. HR 38H-9238. It is the case of the petitioner-transporter that on the fateful day the petitioner was carrying the goods of the consigner in Delhi to Chas and Jharia in the State of Jharkhand. On the way to Jharkhand, the truck had to pass through the State of Bihar. On 23rd November 2012, while entering the State of Bihar at the Integrated Check Post, Karmanasha, Bhabua, Kaimur on the border between the State of Uttar Pradesh and the State of Bihar, the truck driver was required to submit „Suvidha‟, the computer generated declaration. The particulars entered in the „Suvidha‟ produced by the driver were not true and complete. For incorrect/incomplete information provided to the authorities the truck and the goods were seized by the ....

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....Check Post on the border between the State of Uttar Pradesh and the State of Bihar, the truck driver was required to produce „Suvidha‟, the computer generated declaration. The particulars entered in the „Suvidha‟ produced by the driver were not true and complete. For incorrect/incomplete information provided to the authorities, on 26th November 2012 the truck and the goods were seized by the authority at the check post. The F.I.R. was lodged for the alleged offence punishable under the 2005 Act and under Sections 415, 420, 406, 407, 409 and 120B, IPC. Under order dated 1st December 2012, the tax on the goods was assessed at Rs. 61,618.55 and the penalty of Rs. 1,84,856/-, three times the amount of tax assessed, has been imposed. Pursuant to the said order a demand notice in the sum of Rs. 1,84,856/- has been issued on 1st December 2012. In CWJC No. 8427 of 2013, the petitioner-transporter M/s Naresh Roadlines Private Limited claims to be the owner of the truck bearing registration no. HR 6QA-1938. In February 2013 the petitioner was transporting the goods of the consigner in Kolkata for delivery to the consignee in the State of Gujarat. On the way, ....

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....rted through the truck bearing registration no. MP 09 HG-3507 from Kolkata in West Bengal to Madhya Pradesh. On the way, the truck had to pass through the State of Bihar. On 26th November 2012, the truck reached the Integrated Check Post, Dobhi, Gaya, on the border of the State of Bihar. At the Check Post, the truck driver was required to produce „Suvidha‟, the computer generated declaration. The particulars entered in the „Suvidha‟ produced by the driver were not true and complete. For incorrect/incomplete information provided to the authorities the truck and the goods were seized by the authority at the check post. The F.I.R. was lodged for the alleged offence punishable under the 2005 Act and under Sections 415, 420, 406, 407, 409 and 120B, IPC. Under his order dated 30th November 2012, the Commercial taxes Officer imposed the penalty in the sum of Rs. 91,150/-, three times the assessed tax. Pursuant to the said order, demand notice in the sum of Rs. 91,150/- was issued by the Commercial Taxes Officer, Integrated Check Post, Dobhi on 30th November 2012. On payment of penalty the truck and the goods were released on 11th January 2013. In CWJC No. ....

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....or documents of the dealer or the person as may be necessary. Clause (a) of the sub-Section (4) of Section 56 of the 2005 Act empowers the authority, inter alia, to seize the goods not properly accounted for. Clause (b) of sub-Section (4) thereof empowers the concerned authority to impose penalty in the following words:- "(b) The authority referred to in clause (a) shall, in a case where the dealer or the person-in-charge of goods as mentioned in clause (a) fails to produce any evidence or fails to satisfy the said authority regarding the proper accounting of goods, impose a penalty, after allowing an opportunity of hearing in the prescribed manner to the dealer or such person, which shall be equal to three times the amount of tax calculated on the value of such goods and the goods shall be released as soon as the penalty is paid." Sub-section (5) of Section 56 thereof empowers the concerned authority, inter alia, to break open the lock or to seal any box or receptacle, godown or building etc. Chapter IX of the 2005 Act comprising Sections 60, 61 and 62 provides for "Check-Posts and Restrictions on Movement". Sub-section (1) of Section 60 of the 2005 Act empowers ....

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....all be made over to the dealer or the person in charge of the goods, as the case may be. (b) The provisions of section 56 shall, mutatis mutandis, apply in matters relating to such seizure penalty, security, release and confiscation of goods." Section 61 of the 2005 Act imposes restriction on movement of goods. Section 62 of the 2005 Act makes provision in respect of "Transportation of goods through State of Bihar". Sub-section (1) thereof provides for transit permission to be obtained by the driver or the person in-charge of the vehicle at the point of entry and the surrender of such transit permission at the point of exit within seventy-two hours of the entry. In case of failure to surrender the transit permission, the goods would be deemed to have been sold within the State of Bihar entailing the penalty. Section 93 of the 2005 Act empowers the State Government to make rules to carry out the purposes of the 2005 Act. In exercise of the power to make rules conferred by Section 93 of the 2005 Act, the State Government has framed the Bihar Value Added Tax Rules, 2005. Rule 40 of the Rules provides for „check posts‟ and prior to its amendment b....

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....onic transaction identification number generated and communicated to the applicant, in such manner as may be specified in the notification issued under clause (b). (d) The driver of the vehicle carrying the goods or the person incharge of the goods shall, upon demand, communicate the electronic transaction identification number granted in respect of the goods to the monitoring authority for verification who shall deal with the same in such manner as may be specified in the notification issued under clause (b). (e) The manner in which the electronic transaction identification number is to be communicated for verification to the monitoring authority and the period for which the said number shall be valid may be specified in the notification issued under clause (b). Explanation.1 - For the purposes of this sub-rule the expression "monitoring authority" shall mean - (i) The Deputy Commissioner of Commercial Taxes, the Assistant Commissioner of Commercial Taxes, the Commercial Taxes Officer or the Assistant Commercial Taxes Officer exercising jurisdiction in respect of the concerned checkposts or any checkposts en route; or (ii) The Deputy Co....

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....empowers the State Government to make rules but the State Government is not empowered to delegate any of its functions to any other authority. Under rule 40 of the Rules the State Government has delegated certain powers to the Commissioner of Commercial Taxes. The action of the delegation of powers to the Commissioner of Commercial Taxes is ultra vires Sections 93(1) and 93(2)(zzo) of the 2005 Act. It is further submitted that in exercise of power conferred by rule 40 of the Rules, the Commissioner of Commercial Taxes has issued Notifications dated 11th July 2012, 12th July 2012 and 30th October 2012. The said Notifications having been issued by the Commissioner of Commercial Taxes are violative of Section 93 of the 2005 Act and are null and void. It is also submitted that the Notifications dated 12th July 2012 and 30th October 2012 have not been notified in the Official Gazette as envisaged by Section 2(u) of the 2005 Act. The said two Notifications are, therefore, non est in the eye of law. No action, therefore, could have been taken against the goods and the carriers in question for violation of the said Notifications. In support of his submissions, Mr. R K Agrawal has ....

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....isions, viz. Section 9(4) of the 2005 Act to buttress his submission that publication of the Notification in the Official Gazette is not mandatory. He has submitted that wherever the requirement of publication in Official Gazette is mandatory, the State legislature has expressly provided for "notification published in the Official Gazette". He has further submitted that the definition of the word "notification" occurring in Section 2(u) of the 2005 Act will not govern the legislative intention. In support thereof, he has relied upon the judgments in the matters of Harla v. The State of Rajasthan (AIR 1951 SC 467); of Bangalore Woollen, Cotton and Silk Mills Co. v. Bangalore Corporation (AIR 1962 SC 562); and of Rai Vimal Krishna v. State of Bihar [(2003) 6 SCC 401]. Mr. Lalit Kishore has also relied upon the judgments in the matters of Guljag Industries v. Commercial Taxes Officer [(2007) 7 SCC 269] and of Assistant Commercial Taxes Officer v. Bajaj Electricals Limited [(2009) 1 SCC 308]. At the outset, we must record that the impugned orders made in exercise of powers conferred by Section 60(4) of the 2005 Act are appealable under Section 72 of the 2005 Act. If aggrieved,....

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....of the respondent authorities in seizing the goods and the carriers and of imposing the penalty, three times the tax assessed on the goods, has to be rejected. The respondent authorities have acted in discharge of their official duty. The action of the respondents, therefore, cannot be said to be arbitrary or illegal. As to the release of the offending vehicles, we must note that with respect to the incident in question the authorities have filed a police complaint. The matters have thus become police case, and the goods and the trucks are in the police custody. The only remedy to the writ petitioners for release of the trucks would be before the concerned Magistrate under Section 451 Cr.P. C. Now we shall examine the constitutional validity of Section 60(4) of the 2005 Act and the Notifications dated 4th July 2012 and 12th July 2012. Article 301 of the Constitution deals with the "freedom of trade, commerce and intercourse" and reads, "subject to the other provisions of this Part, trade, commerce and intercourse throughout the territory of India shall be free". Learned Advocates Mr. R K Agrawal and Mr. Purnendu Singh have vehemently submitted that it is ....

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....0(3) and 60(4) of the 2005 Act come into play only when the goods are presumed to be brought for sale or use in the State of Bihar and that the request for transit pass for out to out transit is not genuine. Clearly the provision is deterrent. We see no illegality or violation of Articles 301 and 303 of the Constitution in Section 60(4) of the 2005 Act. Since the said provision is invoked in case of the goods which are believed to have been brought in the State for sale or use in the State, Article 304(b) of the Constitution is not attracted, the question of previous sanction of the President does not arise. We, therefore, reject the challenge to the constitutional validity of Section 60(4) of the 2005 Act. Section 60(4) of the 2005 Act is not ultra vires Articles 301, 303 or 304(b) of the Constitution of India. It is not for the first time that such a provision is made in the 2005 Act. Similar provisions are found in other taxing statutes with a view to counteracting evasion of tax. As early as in 1961, in the matter of Baldeo Singh (AIR 1961 SC 736) a similar issue arose in respect of the Indian Income Tax Act, 1922. The challenge was to the validity of Section ....

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.... Transport Company (AIR 1986 SC 1099). In the matter of Sodhi Transport Company, the Hon‟ble Supreme Court was called upon to examine the constitutional validity of a similar provision in Section 28B of the U.P. Sales Tax Act, 1948. Section 28B of the said Act read with Rule 87 of the Rules made under the said Act enjoined the driver or the person in-charge of the vehicle to surrender the copy of the transit pass at the exit check post. The failure to surrender the transit pass would give rise to the presumption that the goods had been sold within the State of U.P. The said presumption would entail liability to pay tax under the said Act. The constitutional validity of the aforesaid Section 28B and Rule 87 was the subject matter of challenge. The Hon‟ble Court followed the judgments of the Supreme Court in the matters of Baldeo Singh (AIR 1961 SC 736) and of Gursahai Saigal (AIR 1963 SC 1062) to hold the said provisions intra vires. The Hon‟ble Court held that the provisions contained in the aforesaid Section 28B of the Act and Rule 87 of the Rules were the machinery provisions. They were enacted to ensure that a person who had brought the goods inside the State a....

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....ror, the Court held no case for imposing penalty was made out. Under the Act penalty may be imposed for failure to register as a dealer. The Court held, "the liability to pay penalty does not arise merely upon proof of default in registering as a dealer. An order imposing penalty for failure to carry out a statutory obligation is the result of a quasi-criminal proceeding, and penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation. Penalty will not also be imposed merely because it is lawful to do so. Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances. Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the s....

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....llary or subsidiary matters which are fairly and reasonably comprehended within the power to levy sales tax." In the matter of Sha Sukraj Peerajee (AIR 1968 SC 67) the constitutional validity of the Madras General Sales Tax Act (9 of 1939) and the rules made thereunder was the subject matter of consideration before the Hon‟ble Supreme Court. The Hon‟ble Court held that the effective date of the relevant provision was the date on which it was sent for assent by the President. The Hon‟ble Court held that the impugned rule 21A framed under the rule making power had the effect of enlarging the scope of Section 10 recovering the tax from a person other than dealer and thus was ultra vires the Act. This judgment is in peculiar facts of the case. It is not an authority in the subject matter on our hand. True, in the matter of Atiabari Tea Company Limited (AIR 1961 SC 232) the Hon‟ble Supreme Court has taken a contrary view. The challenge was against the Assam Taxation (on Goods carried by Roads or Inland Waterways) Act on the ground of lack of legislative competence of the State of Assam and being violative of Article 301 and Article 304(....

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....vehicle or carrier of goods in movement, inter alia, to carry with him goods vehicle record. Sub-section (5) thereof enjoins, inter alia, the officer in-charge of the check post to impose penalty for violation of Section 78(2)(a) of the Rajasthan Act. The Hon‟ble Court held that there is no scope for waiver of penalty for contravention of Section 78(2). The Hon‟ble Court rejected the contention that it was open to the assessee to establish absence of intention to evade tax from documentary evidence like invoice, books of accounts, etc. The Hon‟ble Court also rejected the contention that in certain cases of inter-State transaction, the assessees were not liable for being taxed under the Rajasthan Act and, therefore, the penalty for contravention of Section 78(2) could not be imposed. The Hon‟ble Court held, "It is for contravention of Section 78(2) that penalty is attracted under Section 78(5). Whether the goods are put in movement under local sales, imports, exports or inter-State transactions, they are goods in movement, therefore, they have to be supported by the requisite declaration. It is not open to the assessee to contravene and say that the ....

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....e Hon‟ble Supreme Court in the subject matter. The Constitution Bench in the matters of Baldeo Singh (supra) and Atiabari Tea Company Ltd. (supra) were headed by Hon‟ble Chief Justice B P Sinha; two Judges (the Chief Justice and Mr. J C Shah, J.) being common. In the matter of Baldeo Singh, the Hon‟ble Court upheld the law which imposed penalty. The Court held that the provision enacted to make the substantive provision workable is ancillary and incidental to the relevant Entry and that it was valid. However, the similar provision to levy penalty in the Assam Taxation (on Goods carried by Road or Inland Waterways) Act was held to be beyond legislative competence by majority. (Hon‟ble B P Sinha, CJ, dissented). The said judgment has been followed by the Constitution Bench headed by Hon‟ble Mr. Justice J C Shah in the matter of The Check Post Officer, Coimbatore (supra). The power to seize and confiscate the goods and levy penalty under the Madras General Sales Tax Act (1 of 1959) was held to be not ancillary or incidental to "Taxes on sale or purchase of goods." Yet another Constitution Bench of the Supreme Court in the matter of R S Jhaver (AI....

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....es of the Act, if the said authorities are vested with certain powers to carry out the provisions of the Act and the rules made thereunder, the same would not offend the Constitution of India or the 2005 Act. Rule 40 of the Rules, before its amendment on 4th July 2012 provided, inter alia, for the manner in which the check posts may be set up by the State Government. Sub-rule (3) thereof enjoined certain authority or officer, on being satisfied about the particulars furnished, to grant permission. Sub-rule (4) thereof enjoined the driver of the vehicle to submit a copy of the transit permission at the exit check post. The said Rule 40 has now been amended under the Government Notification dated 4th July 2012. Under the amended Rule 40, a revised procedure has been prescribed for disclosure of the particulars and for issue of the transit pass. It is evident that the said amendment is necessitated on account of the modern technology. Instead of manual intervention, now under the revised rule, the required declaration is auto generated by employing the electronic technology. Under the amended Rule 40 the driver or the person in-charge of the goods is required to feed the part....

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....de the rule which empowered the District Magistrate to make order. The judgments in the matter of Pramod K Pankaj [(2004) 3 SCC 723] and in the matter of Surinder Singh Brar [(2013) 1 SCC 403] are distinguishable on their own facts. Now we shall come to the Notifications dated 12th July 2012 and 30th October 2012 issued by the Commissioner of Commercial Taxes-cum-Chief Secretary in exercise of power conferred by sub-rule (2) of Rule 40 of the Rules. At the outset, we must say that we do not agree with Mr. Lalit Kishore that requirement of publication in the Official Gazette is directory and not mandatory. The said sub-rule is specific in so far as it provides, "Commissioner may, by notification". The word "notify" is defined in clause (u) of Section 2 of the 2005 Act to mean "a notification published in the Official Gazette". In our opinion, no Notification would be complete / effective without its publication in the Official Gazette. Section 28 of the Bihar & Orissa General Clauses Act, 1917 also provides for publication of orders or notifications in the Official Gazette. It reads - "28. Publication of orders and notifications in the Official Ga....

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....fficacy of that Act. The Hon‟ble Court held that in absence of any law or custom of giving public notice also the Act could not be made effective without publication in the Official Gazette. Publication of a sub-section in the Official Gazette was not publication of the Act itself. The Hon‟ble Court held, "we do not know what laws were operative in Jaipur regarding the coming into force of an enactment in that State. We were not shown any, nor was our attention drawn to any custom which could be said to govern the matter. In the absence of any special law or custom, we are of opinion that it would be against the principles of natural justice to permit the subjects of a State to be punished or penalized by laws of which they had no knowledge and of which they could not even with the exercise of reasonable diligence have acquired any knowledge. Natural justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognizable way so that all men know what it is; or, at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exe....

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....c notice, by beat of drum and by placards posted throughout Patna. The Hon‟ble Court held that giving of public notice was mandatory but the requirement of publication by beat of drum and by posting the placards was directory. The Hon‟ble Court was of the view that publication by beat of drum was anachronism and was inappropriate in the present day and age in a large city like Patna. In the matter of M/s Sree Bahariji Mills Ltd. (AIR 1983 Patna 311) a Bench of this Court was concerned with the notification issued by the State Government. The Bench invoked Section 28 of the Bihar & Orissa General Clauses Act, 1917 to hold that the notification would not become operative until it is published in the Official Gazette. In the matter of Ram Sagar Prasad [(1985 BRLJ 92(Order)], this Court held that the nomination of a member of the Market Committee would become effective only when the order was notified in the Official Gazette. The aforesaid principle is reiterated by the Hon‟ble Supreme Court in the matter of Rajendra Agricultural University [(2010) 1 SCC 730]. In view of the above discussion, the Writ Petitions are dismissed. We reject the challenge to Sec....

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....µà¥‡à¤¬à¤¸à¤¾à¤ˆà¤Ÿ www.biharcommercialtax.gov.in पर ट्रांजीट पास के लिए "सुविधा" आईकॉन में T-TAN (Transporter Transaction Access Number) से संबंधित आईकॉन पर क्लिक करना होगा। क्लिक करते ही परिवहनकर्ता को अपने नाम, पता, प्राधिकृत व्यक्ति, पैन अथवा बैंक एकाउन्ट नम्बर, टेलिफोन नम्बर आदि विवरण को भर कर उक्....

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....े जाने के उपरांत Submit Button Click करने पर उक्त फार्म स्वत: विभागीय वेबसाईट / डाटाबेस में अपलोड हो जायेगी। ज्ञातव्य है कि सूचना राज्य में प्रवेश के पूर्व कभी भी एवं कहीं से भी अपलोड की जा सकती है, 2.3 सूचना अपलोड होते ही एक पावती रसीद सिस्टम द्वारà....

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....¤°à¤µà¤¿à¤·à¥à¤Ÿ होते ही ट्रक में लदें उक्त सम्प्रेषण से संबंधित पूर्व में अपलोड की गई सारी सूचनाएं अवलोकन हेतु स्क्रीन पर उपलब्ध होगी / जाँच चौकी पर इसके सत्यापन के उपरांत ट्रक को आगे परिवहन की अनुज्ञा दी जायेगी एवं यह तथ्य भी कम्प्यूà¤....

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....¤˜à¤‚टों के अंदर उक्त सम्प्रेषण को राज्य के निकासी जाँच चौकी से निकल जाना होगा एवं निकासी जाँच पर तैनात जाँच दलों को सिस्टम से यह सूचना उपलब्ध होगी कि उक्त पहचान संख्या से संबंधित ट्रक राज्य में कब दाखिल हुआ था। 72 घंटों से अधिक की अ....

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....के उप-नियम (2) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए अधिनियम के अधीन पूर्व में निर्गत विभागीय अधिसूचना संख्या 5441, दिनांक 12 जुलाई, 2012 में विनिर्दिष्ट प्रक्रिया में निम्नांकित संशोधन करते हैं:- 1. आउट-टु-आउट ट्रांजिट पास के निर्गमन à....

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....ई एक)। 2. भारत के किसी राज्य से किसी दूसरे राज्य में माल के परिवहन करने के क्रम में बिहार से होकर गुजरने वाले सभी वाहनों पर परिवहित किये जो रहे मालों के संदर्भ में परिवहनकर्ता द्वारा, कर मुक्त मालों के परिवहन को छोड़ कर, consigoner का TIN एवं consignee à....

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....ें यदि परिवहनकर्ता द्वारा भारत के बाहर के किसी देश का चयन किया जाता है तो सिस्टम द्वारा consignor एवं consignee का TIN स्वत: भरा जायेगा। 4. आउट-टु-आउट की सुविधा generate करते समय परिवहनकर्ता को पूर्व में ही संभावित Entry check-post एवं Exit check-post का नाम ड्रॉप डाउन मेन्यू से चयन कर à....

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....—बनी में अवस्थित कस्टम चेक-पोस्टों में से किसी एक कस्टम चेक-पोस्ट पर प्रविष्ट कराया जाना होगा। इस निमित्त संबंधित कस्टम चेक-पोस्ट को विभाग के द्वारा user Document 4 I.D. एवं password उपलब्ध करा दिया गया है। 7. ऐसे परिवहनकर्ता जो एक ही वाहन में एक से अधिक....