2000 (8) TMI 1062 - AT - VAT and Sales Tax

Summary

Issues Involved:
1. Seizure of consignment.
2. Imposition of penalty.
3. Applicability of section 68 and rule 211 of the West Bengal Sales Tax Act, 1994.
4. Applicability of section 72 and rule 223 of the West Bengal Sales Tax Act, 1994.
5. Legal lacuna regarding way bill issuance for non-dealers.

Detailed Analysis:

1. Seizure of Consignment:
The applicant, a company engaged in manufacturing batteries, challenged the seizure of its consignment and the consequent imposition of penalty by the Assistant Commissioner, Commercial Taxes, under sections 70 and 71 of the West Bengal Sales Tax Act, 1994. The consignment of lead ingot was intercepted and seized due to the absence of a way bill, which was deemed a contravention of section 68 of the 1994 Act.

2. Imposition of Penalty:
The Assistant Commissioner imposed a penalty after giving the applicant a hearing, as the consignment was not accompanied by a duly endorsed way bill, violating section 68. The applicant contended that they were not aware of the requirement due to being an outsider and depended on advice that a declaration under section 72 would suffice. The Tribunal found that the applicant's failure to provide a way bill was due to a legal lacuna and not a deliberate breach.

3. Applicability of Section 68 and Rule 211:
The Tribunal agreed that section 68 and rule 211 were applicable, requiring the consignment to be accompanied by a way bill. The applicant admitted the failure to comply but argued it was due to the absence of a provision in the law for obtaining a way bill by a non-dealer without an office or residence in West Bengal.

4. Applicability of Section 72 and Rule 223:
The applicant initially submitted a declaration under section 72 and rule 223, which was incorrect for the situation as the goods were not merely passing through West Bengal but were to be delivered within the state. The Tribunal noted that the declaration was irrelevant but not illegal.

5. Legal Lacuna Regarding Way Bill Issuance for Non-Dealers:
The Tribunal highlighted a legal lacuna in the rules (215, 215A, and 215B) which did not specify the authority from whom a non-dealer without an office or residence in West Bengal could obtain a way bill. This absence of provision meant the applicant could not legally obtain a way bill, and thus, could not be penalized for this failure.

Conclusion:
The Tribunal held that while the seizure of the consignment was valid, the imposition of the penalty was unwarranted due to the legal lacuna. The order imposing the penalty was quashed, and the respondents were directed to release the seized consignment. The Tribunal clarified that the respondents could take appropriate action within their jurisdiction as permitted by law, without needing specific liberty from the Tribunal.