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TMI Blog2003 (2) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. We find no valid reason to hold that the said provisions are illegal much less unconstitutional, therefore, we are unable to sustain either the reasoning or the conclusion of the Tribunal that sub-sections (6) and (7) of section 4C of the Act and sub-rule (4) of rule 48L of the Rules are unconstitutional - Civil Appeal No. 8180 of 1995, - - - Dated:- 25-2-2003 - SYED SHAH MOHAMMED QUADRI AND ASHOK BHAN JJ. Yashank Adhyaru, Senior Advocate (Satyajit Saha and Mrs. V.D. Khanna, Advocates, with him) for the respondents. B. Sen and Rakesh Dwivedi, Senior Advocates (Dayan Krishnan and S. Mishra, Advocates for M/s. Sinha and Das, Advocates with them), for the appellants. -------------------------------------------------- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, contends that the approach of the Tribunal in suspending operation of the Explanation to section 2(1a-1) and declaring sub- sections (6) and (7) of section 4C of the Act and sub-rule (4) of rule 48L of the Rules as invalid and unconstitutional is erroneous and the decision untenable; the Tribunal has erred in proceeding on the assumption that the power to seize and sell the goods is exercisable without purchase of goods by, and a proper assessment of purchase tax in respect of, a transporter of goods. Mr. Adhyaru, the learned Senior Counsel for the respondents has expressed the apprehension and real grievance of the respondents that due to fallacious interpretation of the said impugned provisions, trucks are being stopped at the entry po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all be deemed to be a casual trader in respect of such goods carried in his goods vehicle. Explanation 2. -An owner or lessee of a godown or warehouse, who fails to disclose the name and address of the owner of any goods stored in such godown or warehouse, shall be deemed to be a casual trader in respect of such goods." 6.. It is seen that sub-section (1a-1) of section 2 of the Act defines the expression "casual trader" to mean: (i) a person, other than a registered dealer, who whether as a principal or agent or in any other capacity, (a) makes occasional purchases of goods in West Bengal for purposes other than his personal use or consumption in West Bengal; or (b) makes occasional sales of goods in West Bengal and has no fixe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, set aside the finding of the Tribunal in regard to Explanation 1. 8.. Section 4C of the Act is a charging section in respect of a casual trader. Sub-section (1) thereof opens with a non obstante clause and mandates that subject to the provisions of sub-section (3), a casual trader shall pay tax on his every purchase of goods in West Bengal. Certain purchases are exempted thereunder but we are not concerned with them here. Sub-section (2) prescribes rates mentioned in various clauses of sub-section (1) of section 5 at which the tax is payable by a casual trader on purchase of any goods. Sub-section (3) speaks of refund of the tax paid by a casual trader when he makes regular sales and gets himself registered in the circumstances spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn or warehouse, and shall, before making seizure, prepare an inventory of such goods in the presence of the transporter or the owner or the lessee of the godown or warehouse, as the case may be, and get such inventory countersigned by him or any other witness. (7) If the goods seized under sub-section (6) are not claimed by the bona fide owner of such goods within fifteen days from the date of seizure, the Commissioner may sell such goods in open auction and adjust the amount of tax on purchases of goods that may be determined under sub-section (4) with the sale proceeds of the goods and deposit the balance, if any, with a Government Treasury for refund to the bona fide owner of goods upon claim preferred in the prescribed manner within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n days from the date of seizure, and adjust the amount of tax on purchases of goods that may be determined under sub-section (4) with the sale proceeds of such goods. The balance amount, if any, is required to be deposited with a Government Treasury for refund to the bona fide owner of goods upon claim preferred in the prescribed manner within one year. 12.. The procedure to levy the impost under section 4C of the Act is mentioned in sub-rule (1) of rule 48L of the Rules. It provides that if upon information or otherwise, the Commercial Tax Officer or an Inspector, authorised by the Commissioner in that behalf, is satisfied that a casual trader is liable to pay tax under sub-section (1) of section 4C of the Act on his purchases made in We ..... X X X X Extracts X X X X X X X X Extracts X X X X
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