CH. KHURSH1D AHMAD, J.--1. The following writ petitions have a common question of law and facts are not disputed:-- 1 .Writ Petition No. 4851-95 2 .Writ Petition No. 4866-95 3 .Writ Petition No. 5791-95 4 .Writ Petition No. 5173-95 5 .Writ Petition No. 5351-95 6 .Writ Petition No. 5489-95 7 .Writ Petition No. 5174-95 8 .Writ Petition No. 5175-95 9 .Writ Petition No. 4854-95 1 0 .Writ Petition No. 4853-95 1 1 .Writ Petition No. 4852-95 1 2 .Writ Petition No. 6133-95 1 3 .Writ Petition No. 5954-95 1 4 .Writ Petition No. 5953-95 1 5 .Writ Petition No. 5952-95 1 6 .Writ Petition No. 5951-95 1 7 .Writ Petition No. 5950-95 1 8 .Writ Petition No. 5949-95 1 9 .Writ Petition No. 5240-95 2 0 .Writ Petition No. 5239-95 2 1 .Writ Petition No. 5238-95 2 2 .Writ Petition No. 6388-95 2 3 .Writ Petition No. 6306-95 2 4 .Writ Petition No. 6030-95 2 5 .Writ Petition No. 6188-95 2 6 .Writ Petition No. 5627-95 2 7 .Writ Petition No. 5623-95 2 8 .Writ Petition No. 5626-95 2 9 .Writ Petition No. 5625-95 3 0 .Writ Petition No. 5624-95 3 1 .Writ Petition No. 5622-95 3 2 .Writ Petition No. 6387-95 3 3 .Writ Petition No. 7351-95 (all filed by Mr . Mohammad Aslam Zar , Advocate). and 3 4 .Writ Petition No. 5442-95 3 5 .Writ Petition No. 5604-95 3 6 .Writ Petition No. 5586-95 3 7 .Writ Petition No. 5359-95 (all filed by Mr . Rehmat Ali, Advocate) and 3 8 .Writ Petition No. 5109-95 (all filed by Mr . M. Kazim Khan, Advocate)
All the writ petitions are disposed of by single judgment.
2. The petitioners have alleged that they were the owners of vehicles/means of transportation mentioned in respective writ petitions. They were aggrieved of acts of impounding/ hauling up of their respective vehicles by respondents for their failure to produce invoices of payment of Sales Tax leviable on baked bricks since 1-7-1995, as they were using their respective vehicles for the purpose of transportation of baked bricks at the time of raids. The vehicles were taken into possession by the respondents on the failure of respective owners/attendants. Despite best of the efforts made by the respective petitioners in this behalf having failed to get the release of vehicles the above mentioned Constitutional Writ Petitions under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 challenging the seizers of the vehicles on the ground that the same were respectively without lawful authority and without jurisdiction were filed.
3. Notices were issued to the respondents who have put in appearance and caused the appearance of their counsel for the assistance of this court.
4. The learned counsel for the petitioners have submitted that Sales Tax was leviable on baked bricks and was payable by the registered persons as defined in Section 2(19) of Sales Tax Act (VII of 1990). The payment of Sales Tax was not the liability of the petitioners who were innocent persons engaged in earning their livelihood by cartaging the bricks from the kilns to the destinations at the choice of the purchaser. The petitioners could neither act as Tax Collectors nor could insist on obtaining the receipt as the same was to be issued to the purchasers by the producers/manufacturers/bakers of bricks and that primarily the incidence of payment of Sales Tax was the liability, under the law, of the registered persons. It was further contended that the respondents were not vested with the powers to search or stop the vehicles nor they had any legislative backing for demanding invoices from the bona i.e carriers on the road side and at the same time had no right of seizure; seized vehicle could not be retained by respondents in their custody and had only limited power of retention of taxable supply, the bricks, in the present cases.
The acts of the respondents alleged were without lawful authority and of no legal effect.
5. The learned counsel appearing on behalf of the respondents submitted that the Sales Tax was payable on baked bricks not only by registered persons but also by the persons who were liable to be registered under the Act. The learned counsel read out the provisions of Sections 3, 6, 22, 23, 33, 35-A, 39 and 41 of the Act. It was submitted by the learned counsel for the respondents that the carrier of taxable goods was liable to seizure and confiscation in the same manner as the taxable supply. It was further argued that there was nothing in the Law which prohibited the respondents from stoppage and search of carrier and as such the respondents had acted with lawful authority in seizing and retaining the vehicles in their custody where the respective petitioners failed to show tax invoices. They placed reliance on Section 35-A of the Act.
6. It was contended that the tax was payable on baked bricks and the payment thereof was the liability of manufacturers/ registered persons and to be shown in the invoice as assessed and payable on the sales made and as it was mandatory for a carrier to carry the invoice with him, no exception could be made in the case of the petitioners. The learned counsel for the respondents also raised objection to the maintainability of the writ petitions. It was argued that the impugned actions were open to appeals and revisions, provided under the Act itself. The petitioners had not availed the right to relief provided under the Act, therefore, the writ petitions were not maintainable as there was alternate and efficacious remedy available to the petitioners. No doubt the remedy of appeal and revision was provided under Sales Tax act, 1990 but whether the same was efficacious also is to be seen in the circumstances of the writ petitions. I am of the view that the remedy provided under the law was not efficacious and speedy so far as the carriers were concerned. The efficacy would be lost in the corridors of departmental authority and placing reliance on Premier Cloth Mills v. Sales Tax Officer (1974) 29 Tax 1990 (S.C. Pak.) = (1972 SCM R 257). Salah-ud-Din v.
Friend Sugar Mills (P.L.D. 1975 S.C. 244) and Nagina Silk Mills v. I.T.O, etc. (1963) 7 Tax 442 (S.C. Pak.) = (P.L.D. 1963 S.C. 322), it is therefore, held that the writ petitions are maintainable. The objection regarding maintainability is repelled.
7. Section 6 of the Act prescribes the manner and mode of assessment and its time of payment.
The registered person is required to i.e return in respect of supply of taxable goods and is also required to issue tax invoice for every supply in seriatum. The taxable supply, if made without the cover of transport, invoice is liable to confiscation and creates a liability to penalty under Section 35 of the said Act. Section 35-A of the Act prescribes the extent of confiscation and also makes the conveyance of every kind, used in the cartage of goods, liable to confiscation and the Collector is vested with the powers of seizure under Section 39 of the said Act. The same contains the details of the powers vested in the Collector.
8. The Conduct/Procedure to be adopted by the respondents is also provided under the Act.
Section 41 of the Act lays down the procedure. Rules have also been framed as the Sales Tax (Transport Permit) Rules, 1990. The said rules enjoin upon the manufacturers to issue transport permits along with the taxable supply.
9. The liability to pay the tax under Sales Tax Act is primarily of the registered persons. It necessarily follows that the liability to pay penalty and to face the prosecution is inseparable from the liability of the registered person. The liability, if any of the carrier is of secondary nature and could only be levied or inflicted after the final adjudication against the registered person. It therefore further follows that the tax authorities are not vested with any authority to proceed against the carrier in isolation of the registered persons. The import of the preamble also clearly shows the intention of the Legislature. Proceedings in isolation, against the carrier thus were without lawful authority.
10. The learned counsel, for the respondents has not been able to show me the legislative backing for the assumed powers of stoppage and search of the vehicle. The right of privacy and to pursue the lawful professions are the fundamental rights of the citizens to be enjoyed without any hindrance. Such rights could only be taken away under some legal provision. Unless specifically provided and the functionaries specifically empowered, they have no right to stop and search the vehicle for the purpose of enforcement of the provisions of Sales Tax Act, 1990. In holding this view I am supported by provisions of Customs Act, 1969. The authorities under the said Act are empowered vide Section 164 of the Act to stop conveyance and to search the same but no parallel provision is available in Sales Tax Act, 1990 and Rules framed thereunder. In the absence of statutory backing the actions of the respondents with regard to stoppage, search and seizure of the vehicles used for cartage of baked bricks is held to be without jurisdiction, not sustainable in law and of no legal effect.
11. Resultantly, the writ petitions succeed, are allowed and direction as prayed for issued with no order as to costs.