9911796707
TMI Blog1990 (11) TMI 390X X X X Extracts X X X X X X X X Extracts X X X X ..... nt particulars of despatch to its representative in Calcutta with a request to obtain the necessary sales tax permit and to hand over the same to the drivers of the truck at West Bengal border. For the sake of convenience and for saving time and avoiding detention, the practice amongst the consignors is to despatch goods with instruction to wait at West Bengal border until receipt of permit. All the drivers of vehicles operating under the applicant-company had been given specific instructions not to enter the State of West Bengal until the required permits are made available to them. The time taken in transit from Delhi to Chirkunda, which is at the border of West Bengal, is about five days. At Duburdihi check post near Asansol the drivers of the aforesaid two trucks produced all the documents which were handed over to them at the time of despatch. The commercial tax authorities at Duburdihi check post, however, seized the goods on November 10, 1986 on the ground that the drivers could not produce the requisite permit and then the authorities initiated Seizure Case Nos. S.C. 687(54)/1986/87 and 688(54)/1986-87 dated November 10/11, 1986. 3. The case of the applicant is that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansporters can be held liable in certain specified circumstances, but these provisions are challenged as arbitrary and illegal and in any case the disputed seizure was effected prior to the said Amendment Act of 1988 came into force. The prayers in the application include setting aside orders dated December 2, 1986, February 5, 1987 and December 16, 1987 and for refund of the amounts of penalty paid. There is a prayer for declaring sections 4 B, 14 A and 14 D of the 1941 Act as amended in 1988 and rules 89 to 94 as ultra vires. 4. The case of the respondents is that the writ petition is not maintainable inter alia on the grounds that a reference might be applied for under section 12-A of the 1954 Act and that the matter does not involve any question of law relating to the interpretation of the Constitution of India or of the 1954 Act and Rules or involving jurisdiction of the authorities under the 1954 Act. It is stated that the respondents are not aware of the communication, if any, which passed between the consignor and the consignee and the practice or procedure actually followed by the transporter. But the fact remains that the two lorries in question carried the notified c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , a company, but it means only a natural person. (ii) There was no intention to evade tax. The consignee could not obtain permit earlier, since it was not aware of arrival of the goods in question at the check post on the dates of seizure. The drivers violated instructions to wait for permits at West Bengal border. (iii) The permit which was obtained from a competent authority and produced at the penalty proceedings could not be rejected; and (iv) No opportunity was given to the drivers to produce permits before making seizures. 6.. We now deal with Mr. Bhattacharjee's points serially. The seizures in this case took place in November, 1986. In the next year, i.e., 1987, the definition of "dealer" in section 2(b) of the 1954 Act was amended by including therein "other body corporate" among others. But at the material time the definition stood as follows: "'dealer' means any person who sells notified commodities manufactured, made or processed by him in West Bengal, or brought by him into West Bengal from any place outside West Bengal for the purpose of sale in West Bengal." The expression "person" has not been defined in the 1954 Act. Accordingly, Mr. Bhattacharjee, appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the seizures. Mr. Bhattacharjee's reply was merely in the form of a question as to how the applicant can prove such assertions. We are unable to appreciate Mr. Bhattacharjee's helplessness in substantiating facts asserted by applicant. Thus, the second contention falls through in the absence of some material to show the truth of the assertions of fact. Applicant has failed to show that there was really a communication gap, that drivers had actually been given the alleged instructions or that the drivers violated such instructions. In our view, mere assertions cannot take the place of evidence to prove the same. 8.. Mr. M.L. Bhattacharjee, learned advocate appearing for applicant, next argued that, although after seizure, permit in any case was obtained by the consignee from the competent authority and such permit was produced at the hearing of the penalty proceedings. According to him, the officer who heard the penalty proceedings should not have rejected the permits. Mr. De, appearing for the respondents, submitted that the permit was applied for and obtained admittedly quite a few days after the seizures and, therefore, these steps were taken with the knowledge of seizure which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on behalf of applicant are rejected. The learned State Representative submitted that the facts and circumstances show in this case that there was a clear attempt to evade tax. We see no reason to differ. The learned State Representative relied on our judgment dated June 8, 1990 in the case of Crompton Greaves Ltd. v. I.C.T., Chichira Check Post, RN-385(T) of 1989, in paragraph 4 of which in somewhat similar circumstances the Full Bench of this Tribunal had held that non-production of permit at the time of seizure could not be explained and, therefore, the seizure was valid in view of the infraction of law. Mr. Bhattacharjee, appearing for applicant perused the said judgment, but did not submit anything in that regard. In this case also, there was undoubtedly infraction of the law and the attempted explanation for nonproduction of permit at the time of seizure has not been substantiated. As regards the quantum of penalty, learned advocate for the applicant submitted that it may be reduced. After giving careful consideration to this aspect of the matter, we are of the opinion that there is no ground for reduction of the quantum of penalty. 11.. In the result, the application fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
