9911796707
TMI Blog1996 (7) TMI 543X X X X Extracts X X X X X X X X Extracts X X X X ..... port, the Commercial Tax Officer (hereinafter referred to as the respondent No. 1 ) intercepted the truck on December 5, 1995 and brought the vehicle to the sales tax office at 14, Beliaghata Road. He then seized the batteries on December 6, 1995 on the ground that the same had been imported in contravention of the provision of section 68 of the 1994 Act. The applicant s repeated prayer for release of the goods went unheeded by the respondent No. 1 who demanded payment of Rs. 5 lakhs as penalty. This being the first ever venture of the nature embarked on by the applicant, he was unaware of the legal necessity for procuring a permit for import of such goods into West Bengal. Had the applicant any idea in this regard, he would have timely procured a permit because the consignment was lying with the customs authorities at the port for about 7 days. Even the check-post authorities at the port allowed the truck to move with the goods. The seizure was arbitrary because no permit is necessary for importation of button cell batteries (hereinafter referred to as BCB ) and consequently imposition of penalty is also illegal. While the sale price of such a battery varies between Rs. 1.50 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty. The price mentioned in the purchase invoice does not determine the real market price. The penalty was on the basis of actual price prevailing in the local market. Drawing of any report for a seizure made under section 70 is not necessary. The absence of witness does not vitiate the seizure. The respondent No. 1 has acted under the legitimately delegated power and hence all his actions from seizure to imposition of penalty are valid. 5.. The applicant filed an affidavit-in-reply disputing the respondent s contentions contained in the affidavit-in-opposition. Therein the applicant has furnished some further justification for his stand in the context of the impugned 40 cases. 6.. In view of the contentions/pleas of the sides, the points for decision, are- (i) whether BCB is an item covered by Schedule IV of the 1994 Act; (ii) whether the seizure was vitiated due to absence of witnesses and prior recording of reasons for such seizure; (iii) whether the respondent No. 1 lacked in the jurisdiction to impose penalty, on account of absence of delegation of power; (iv) if the quantum of penalty imposed is arbitrary; and (v) if the notice of demand is liable to be quashed f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ydroxide. This electrolyte has a lower resistance, allowing larger currents to be drawn from it. Constructed on the inside-out principle, with a porous zinc anode in the centre, the cell provides higher capacity than that obtainable in a conventional leclanche cell of the same size. Manganese-alkali cells are used in portable devices, which require large amounts of current (have high current drain), such as devices containing motors, rather than with electronic equipment. Battery operated razors, cameras and tape recorders are in this category. Another modern alkaline dry cell is the mercury cell, using mercuric oxide (mixed with graphite) instead of manganese dioxide at the cathode, and an alkaline electrolyte (potassium hydroxide). This alternative cathode is capable, of sustaining for higher currents than manganese dioxide, thus providing a greater capacity for a given battery weight and size. Mercury batteries are expensive, however, compared to other dry cell types. They are limited to devices that require high current pulses or extremely long service. Photographic flashguns and hearing aids are typical uses. 8.. The quotation (at page 22 of the application) of the Hong ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay emphasis). Thus the law contemplates of situations where compliance with one or more of the essential requirements of search or seizure under the Criminal Procedure Code may not be possible in case of searches and seizures under the 1994 Act, and therefore, such non-compliance will not vitiate the seizure. In a criminal case it is essential to guard against the possibility of calculated victimization of an accused by way of planting of incriminating articles or fabrication of evidence by a motivated investigating agency through such search. Hence, presence of two or more independent witnesses becomes highly relevant and important to ensure a fair search or seizure. But in the instant case before us, there is absolutely no dispute as regards the nature of article seized, quantity of the same or place of seizure. Presence or absence of witness makes little difference, nor does it shake the credibility of the seizure. Shri Bhattacharjee relies on the decision in Harinarayan Singh s case [1995] 98 STC 208 (WBTT) in order to assert that presence of witness is essential for the validity of a seizure. He points out that this decision was followed also in an unreported case bearing No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wledge of the concerned law he would have definitely obtained a permit. Such plea is of no avail against the maxim, ignorantia legis non-excusat (ignorance of law is no excuse) which is a basic tenet of law and needs no elaboration. In any case, before embarking upon a new business, it was the applicant s own obligation to know the law. 15.. It is alleged by the applicant that the check-post authorities allowed the truck carrying the consignment of BCB to cross the check-post without demand of any permit and thereby led the applicant to believe that no permit was necessary. Even assuming that the check-post authority allowed the vehicle to cross the check-post without insisting on any permit, it would not make the transportation lawful without permit if the law makes it obligatory to have a permit for such transportation. Moreover, the applicant has failed to establish that the consignment was actually cleared by any sales tax check-post authority prior to interception by respondent No. 1. 16.. Mr. Bhattacharjee next disputes the competence of the respondent No. 1, a Commercial Tax Officer, to impose penalty. He points out that only the Commissioner and the Additional Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the transitional provision or under the order dated September 22, 1995 of the Commissioner, the powers of the CTOs to impose penalty remains valid. Hence, we find nothing wrong with the order of the respondent No. 1 imposing penalty. 17.. To assess the quantum of penalty, the respondent No. 1 proceeded on the basis that the market price of each BCB was Rs. 10 and had assessed the total value of the consignment of BCB to be Rs. 20 lakhs and had fixed the quantum of penalty at Rs. 5 lakhs, being 25 per cent of the value of the goods. The respondents have procured a cash memo from a BCB dealer, M/s. Sunita Stores and Tailors to show that the market price of a BCB is Rs. 10 each. The applicant has also produced another cash memo to show that the market price is Rs. 4. Admittedly, the model number of BCB involved here is 389A (vide annexure at page 22 of the application). The cash memo produced by the respondents relates to that particular model but the cash memo produced by the applicant does not bear any reference as to the model number. We, therefore, see no reason to interfere with the quantum of total value of the BCBs as fixed by the respondent No. 1 on the basis of the cash m ..... 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