9911796707
TMI Blog1996 (9) TMI 590X X X X Extracts X X X X X X X X Extracts X X X X ..... res for pipes and cigarettes of M/s. I.T.C. Ltd. and M/s. V.S.T. Industries Ltd. Applicant No. 1 purchases the said cigarettes from various wholesale dealers as also from M/s. I.T.C. Ltd. and V.S.T. Distribution Storage and Leasing Ltd. (subsidiary of V.S.T. Industries Ltd.) directly in West Bengal and sells the same to other wholesalers and retailers in West Bengal. Applicant No. 1 is neither a manufacturer nor a maker or a processor of cigarettes in West Bengal. It does not bring any cigarette or smoking mixtures into West Bengal on its own account or on account of others from any place outside West Bengal for stocking, vending, supplying or distributing the said luxuries in West Bengal. Applicant No. 1 is therefore not a stockist within the meaning of section 2(1) of the 1994 Act. The 1994 Act and the Rules framed thereunder have no manner of application so far as the applicant No. 1 is concerned. 3.. In spite of this position a search and seizure operation was conducted by the officers of the Bureau of Investigation at the place of the applicant s business at Baruipur, 24-Parganas (South) on June 27, 1994. A daily stock sales register for the year 1994-95 and receipt and paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicant by a letter dated September 26, 1995 informed the respondent No. 1 about the judgment and order of this Tribunal dated September 25, 1995 in RN-169 of 1995 under which the applicant No. 2 was directed to appear before the Bureau of Investigation for taking back the seized books and documents. The applicant therefore, expressed its inability to appear before the respondent No. 1 on September 28, 1995. The applicant was thereafter served with two notices one under section 9(2) and the other under section 6(2) of the 1994 Act fixing the date of hearing on November 2, 1995 in both the cases. 7.. The applicant No. 2, it is alleged, himself went on November 2, 1995 at 11 a.m. to the office of the respondent No. 1 with a letter in which he sought to inform the respondent No. 1 that he intended to move this Tribunal and requested the respondent No. 1 not to proceed within the hearing until orders were passed by this Tribunal. The applicant, it is alleged, was subjected to harassment by the receiving clerk and the respondent No. 1 who refused to accept the letter. Thereafter, the applicant No. 2 met the respondent No. 2 and requested him to direct the respondent No. 1 or the rece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... davit-in-opposition, the respondents have submitted that neither the validity of seizure effected on June 27, 1994 nor the retention of books of account and documents seized on June 27, 1994 beyond the period of one year from seizure thereof is relevant in this case as all these disputes have been set to rest by this Tribunal by its judgment and final order dated September 25, 1995. The respondent No. 1 is competent and empowered to issue notices under sections 6(2) and 9(2) of the 1994 Act and such notices issued by him suffer from no illegality, arbitrariness or mala fides. The issuance of such notices does not infringe upon any of the rights of the applicant under article 19(1)(g) of the Constitution or otherwise. The respondent No. 1 found it necessary, on the basis of information which had come into his possession, to issue the notice under section 6(2) of the 1994 Act. The information in his possession was adequate and sufficient to show that the applicant is engaged in importing luxuries from outside West Bengal and is a stockist within the meaning and definition given in section 2(1) of the 1994 Act and that he had failed to obtain licence as required by law. Similarly, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the relevant registers. The applicant was not threatened in any way nor was he told that the proceedings would be completed on that very day whether he submitted any petition or not. Such allegations of the applicant are baseless and motivated. The allegation of the applicant that the respondent No. 1 had the intention to show that the applicant had not appeared at the time when he called him to appear is totally baseless. It would be apparent from records that no order has so far been passed by the respondent No. 1 behind the back of the applicant as alleged. It is in consideration of the petitions filed by the applicant on November 2, 1995 that hearing in the matter of the notices under sections 6(2) and 9(2) of the 1994 Act has been adjourned sine die since then. 13.. The further case of respondents is that the question whether or not the applicant is a stockist is a pure question of fact which needs to be conclusively determined. Even if it is assumed that the said question is a question of law, the same can competently be gone into by the statutory authorities below. If the applicant is dissatisfied with the finding of the authorities below, it would be proper or justifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) of section 14 of the 1994 Act. In view of this situation, she argued, the Bureau of Investigation cannot, as provided in sub-section (3) of section 14 of the 1994 Act, advise the assessing officer who is a quasi-judicial authority. The assessing officer has to form his own opinion and the Bureau, who does not have any power to assess, cannot influence the mind of the assessing officer. Mrs. Bhattacharjee in this connection referred to the decision of this Tribunal in the case of Black Diamond Beverages Pvt. Ltd. v. C.T.O., Central Circle, Assessment Wing [1992] 87 STC 43; (1993) 26 STA 356 where it was held on the facts of that case that the Additional Commissioner and the Assistant Commissioner had initiated suo motu revisions without independent application of mind. It was also held that as authorities exercising a quasi-judicial power of revision, they were required to arrive at their own independent satisfaction. They surrendered their discretion and judgment in this connection to that of the audit whose views, in the facts of those cases, brought to bear an intimidating effect on the revisional authorities. On these grounds this Tribunal held the notices initiating suo mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... municated to the applicant whenever he appears at the hearing before the Commercial Tax Officer. If it is necessary for the sake of justice, a copy of the report, whether from the Bureau of Investigation or from any other agency under the law, may be demanded by the applicant from the prescribed authority at the time of hearing and therefore the applicant without approaching this Tribunal for suggesting a scrutiny of the record to examine whether the prescribed authority had exercised his mind judicially or not should appear before the prescribed authority as required by him in the notices. In that event all the information on the basis of which proceedings under sections 6(2) and 9(2) of the 1994 Act have been started may be disclosed to him. Hence, according to Mr. Goswami, there was no merit in the contention of the applicant that information available to the prescribed authority had not been revealed to the applicant. 17.. Mr. Goswami further argued that there was no lack of validity, constitutional or otherwise in any of the sub-sections of section 14. The Bureau of Investigation is required to carry out investigation or make enquiry into any case of alleged or suspected eva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was challenged. In that case also it was submitted on behalf of the applicants that in the absence of a prior determination of the status of the applicant as a stockist as defined in the 1994 Act, the search and seizure was invalid. In that case it was held by this Tribunal that the use of the words any stockist before the words is attempting to evade in section 12(3) cannot be interpreted in the sense that there should be a prior determination that the person whose place of business is subjected to search and seizure is a stockist . It was held that the provision was clearly meant to prevent or detect cases of attempted evasion of tax and if that predominant intention cannot be fulfilled by an interpretation, it should be avoided. It is necessary, it was held, to interpret the provision in a manner in which it can be worked out in aid of the statute. Thus, absence of a determination of the status of the applicant as a stockist prior to the impugned search and seizure does not vitiate the same. The ratio of this judgment is squarely applicable in the instant case and the argument that due to absence of prior determination of the status of the applicant as a stockist , ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce under section 9(2) of the 1994 Act, he will be able to satisfy himself about the bona fides, or the lack of it, on the part of the respondent. At the present moment all that the applicant is submitting is at best an apprehension that the respondent does not have sufficient information at his disposal to form his own opinion. This is no reason for declaring such notice under section 9(2) of the 1994 Act invalid. 21.. If vires of section 14(3) has not been challenged in the application, we may leave the matter by simply stating that there does not appear to be any reason to hold that section 14(3) of the 1994 Act is not valid constitutionally because of unreasonableness or because of any other reason. Section 14(3) merely requires the Bureau to send a report to the prescribed authority after any investigation or enquiry into a case of alleged or suspected evasion of luxury tax to the prescribed authority regarding such action as may be deemed necessary for the levy, collection, assessment and recovery of luxury tax. Section 14(4) of the 1994 Act prescribes that on the receipt of this report from the Bureau the prescribed authority may require the Bureau to transfer to it any a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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