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TMI Blog1989 (12) TMI 332X X X X Extracts X X X X X X X X Extracts X X X X ..... egulation) Act, 1966. The cold storage is also a factory within the meaning of the Factories Act. Various articles of agricultural produce, animal husbandry, fish, food or drink belonging to different hirers are stored and preserved in the storage on payment of usual charges. The hirers are given receipts for storing their goods in the cold storage. The receipts are, under the provisions of the Cold Storage (Licensing and Regulation) Act, 1966, transferable and the owner of the cold storage is under an obligation to deliver the goods either to the original hirer himself or to any transferee thereof. The cold storage is not a dealer within the meaning of the Bengal Finance (Sales Tax) Act, 1941, or West Bengal Sales Tax Act, 1954. The proprietors of the business do not carry on the business of importing notified goods or commodities into West Bengal. On 20th March, 1989, a contingent of Entry Tax Officers, Inspectors, Sub-Inspectors and Police Officers from the Entry Tax Directorate, Commercial Tax Directorate and the Bureau of Investigation raided the cold storage and a notice for detention of all consignments and goods in relation to dry fruits and spices at the said cold storage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad valid permits for importation of the goods into West Bengal or not. The applicants cannot be prevented from releasing the goods to the hirers or other transferees on presentation of the cold storage receipt which is a negotiable instrument. The seizure effected by the respondents prevents the cold storage owners from performing their obligation under the Cold Storage (Licensing and Regulation) Act, 1966. The search and seizure were effected without any purpose or foundation and the seizure is accordingly liable to be quashed and set aside. The notice requiring the applicants to show cause why a penalty should not be imposed is likewise bad and liable to be quashed. Mainly on the grounds stated above, the applicants have prayed for an order commanding the respondents not to proceed with the penalty proceedings and not to give further effect to the impugned notices, for a direction prohibiting the respondents from proceeding with the notices and for a declaration that the applicants cannot be brought within the mischief of the Bengal Finance (Sales Tax) Act, 1941 or West Bengal Sales Tax Act, 1954. 5.. The respondents 1 to 4 have filed a composite affidavit-in-opposition. The pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the provisions of section 4B and subject to such restrictions as may be prescribed- (i)(a) intercept, detain and search at any place notified under section 4B or any other place any road vehicle, or river craft or any load carried by a person, or (b) search at any godown, warehouse or any other place in which according to his information such notified goods transported in contravention of the provisions of section 4B have been stored; and (ii) seize any notified goods referred to in section 4A- (a) which, in the case referred to in sub-clause (a) of clause (i), he has reasons to believe are being transported in contravention of the provisions of section 4B together with any container or other materials for the packing of such notified goods, or (b) together with any container or other materials for the package of such notified goods in the case referred to in sub-clause (b) of clause (i), where the Commissioner or the prescribed authority has reasons to believe that such notified goods stored in such godown, warehouse or place have been transported there in contravention of section 4B, or that there is no claimant for ownership or possession of such notified goods stored i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... torage (Licensing and Regulation) Act, 1966, the cold storage owner is under no obligation to enquire of the hirers if they had imported the goods from outside West Bengal and if so, whether they had valid permits in that behalf. We were taken through the different provisions of the Act and we are satisfied that the Act does not require the cold storage owner to embark upon such an enquiry before letting out a space in the cold storage to an intending hirer. Consequently, the failure of the applicants to produce evidence of compliance with the provisions of the sales tax laws by the hirers, cannot be used against the applicants who have no obligation in that behalf. The crux of the whole issue is whether the respondents could lawfully effect a seizure in such circumstances, without disclosing materials, to indicate that they had reasons to believe that the goods were imported without any valid permit. The respondents have pleaded that after the seizure they had made investigation through their Inspectors at the different addresses of the hirers and also sent notices by registered post at the addresses noted, but that most of the letters were returned undelivered with the postal end ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent-dealer contended that the sales in question were not inter-State sales while the Revenue alleged that the sales in question were inter-State sales. The matter went up to the Supreme Court, and it was held that the onus lay on the Revenue to disprove the contention of the dealer that the sale is a local sale and to show that it is an inter-State sale. Our attention was also drawn to the case of Mittal and Company v. Commissioner of Sales Tax reported in [1988] 69 STC 42. There the Allahabad High Court held that though the initial onus to establish that no sale was made by the assessee is on the assessee, no evidence could be adduced for establishing a negative fact. When the assessee denied the factum of sale, the onus shifts to the Revenue to disprove the contention of the assessee. Applying these principles to the facts of the cases before us, it may be stated that it was not possible for the applicants to prove affirmatively a negative fact, namely, that they did not cause the importation. 12.. In order to succeed in these cases, it is necessary for the respondents to prove not merely that the goods seized from the cold storage were imported from outside West Bengal but t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. At any rate, this is clear that even if the entry tax authorities did not effect any seizure of the goods as stated by the respondents they had undoubtedly taken the goods in their custody and left it with applicant No. 4. It is doubtful whether in such circumstances the commercial tax authorities could effect a seizure in respect of the goods from the applicants. Conversely, it may be stated that if the seizure by the commercial tax authorities took place first, the action of the entry tax authorities would be irregular. We may, however, indicate here that the propriety of the action taken by the entry tax authorities is not in question before us, and it is beyond our jurisdiction to say whether or not that was proper but in view of the fact that the raid was conducted simultaneously by both the authorities and there being no material as to who effected the seizure first, we cannot altogether ignore the contention urged on behalf of the applicants by Mr. Chakraborty. 14.. This apart, whereas it appears from the seizure receipt granted by the entry tax authorities that the allegation is that different hirers have imported the goods and kept them in the cold storage, while in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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