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TMI Blog1998 (2) TMI 571X X X X Extracts X X X X X X X X Extracts X X X X ..... uch letter-heads with their seller. Since sales tax permit, required for importation into West Bengal, remains valid only for one month and since transportation of such heavy machine like an excavator would take about a month to reach the check-post, the applicants. without immediately applying for permit, instructed the seller to advise the transporter to send intimation to them (the applicants) before entry of the vehicle carrying the machine into Burma check-post in Purulia district. Such instruction was given to enable the applicants to obtain necessary permit before entry of the excavator into the check-post. But on or about April 29, 1997 the applicants learnt that the machine had already been seized on April 26, 1997 by the Inspector of the said check-post on the ground of non-production of sales tax permit. When the applicants approached the respondent-authorities for release the machine on the ground that it was brought for the applicants' own use and not for sale, they learnt that the driver of the vehicle carrying the machine produced a fake consignment note showing that the machine was being transported from Jamshedpur to Assam. The applicants were served with a notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illegally in seizing the excavator machine and (ii) whether the orders of the respondents Nos. 1 and 3 imposing penalty suffer from illegality or arbitrariness. 5.. The undisputed position here is that an excavator is a goods included in Schedule IV of the 1994 Act (vide item 9 of Part A of that Schedule) and accordingly for the importation of the same into West Bengal a sales tax permit is necessary or in the case of transporting such goods through the State of West Bengal to a place outside the State it is obligatory to produce a declaration in form 43 along with other related documents at the check-post of entry as well as the last check-post before exit from the State, for the purpose of necessary endorsement by the check-post authorities. Admittedly, no such permit/declaration was produced at Chichira check-post at the time of entry of the machine into West Bengal. It is argued on behalf of the applicant that seizure under section 70 is permissible only when the competent authority has reasons to believe that there was attempt to evade tax. It is true that the regulatory measures contained in sections 68, 69, 70, 71 and 72 of the 1994 Act read with the rules 210 to 229 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to reach Ulubari in Assam from Jamshedpur through West Bengal. According to the applicants, the driver produced a fake consignment note (in brief "C.C.") by making a false representation in order to make a wrongful gain by extorting money from the applicants. But Mr. M.N. Bhattacharjee. learned Advocate for the applicants, could not furnish any explanation as to how production before the check-post officials for official scrutiny of some documents prejudicial to the applicants could afford opportunity to the driver to extort money particularly when such conduct of the driver was fraught with the risk of causing damage to the reputation of his employer. It is not the applicants' case that the transporter company themselves fabricated the C.C. Mr. Bhattacharjee argues that even the respondent No. 1 found the signature, appearing in the letter-head of the applicant-firm which was produced at the checkpost, not to be the signature of Mr. M. Bhalotia, partner of the firm, and that the signature was a forged one. Mr. M.C. Mukhopadhyay, learned State Representative has pointed out that even if signature was not genuine, it does not lead to an inference of innocence of the applicants; no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er-head (which the applicants claim to have left with BEML) or about missing of any one of the same from their custody; nor have the applicants obtained any certificate from the BEML to the effect that any such letter-head was ever left by the applicants with them or that any such letter had been missing from their custody. Hence, Mr. Mukhopadhyay's assertion that use of such letter-head with forged signature was deliberate with ulterior motive intended to keep scope for disowning the same at convenience, cannot be brushed aside. What crowns all is a fact that C.C. which according to the applicants is genuine and meant for production at the check-post contains a telltale evidence of its own forged nature. 8.. The document at-page 24 of the application is the copy of the despatch advice issued by BEML showing M/s. Ashok Leyland Finance Ltd. (hereinafter referred to as "financier") as the purchaser and indicating loading of the excavator on a trailer. The lower part of this document is meant for recording of despatch particulars and the excise clearance. This part records the goods consignment note number to be 2488 (annexure at page 24 to the affidavit-in-reply also refers to same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use of an excavator. Mr. Bhattacharjee has contended that when the applicants genuinely needed an excavator at the work site at Paidhi colliery, the question of producing any consignment note or a recital in a letter-head showing intention of carrying the excavator to Assam cannot arise. The letter or the certificate issued by the ECL utmost shows that the a applicants procured a job at Paidhi colliery and nothing more. These documents do not justify importation of the excavator without due sales tax permit. On the contrary, there was an attempt, by production of documents at the check-post by the driver, to pass off the machine as meant for Assam. 10.. It is also the applicants' plea that the driver took a different route and arrived at Chichira check-post, while the instruction was to enter West Bengal through Burma check-post in Purulia district. It is further alleged that the driver gave no intimation about the arrival of the excavator which resulted in a failure to procure a sales tax permit. In the circumstances of this case, this plea cannot be accepted. By making the driver scapegoat for all the ills which have befallen the application, the applicants do not improve their ..... X X X X Extracts X X X X X X X X Extracts X X X X
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