9911796707
TMI Blog2000 (11) TMI 1203X X X X Extracts X X X X X X X X Extracts X X X X ..... ck-post authorities at Baxirhat seized on September 4, 1999 the goods on the ground of importation of the same without way bill in contravention of provisions of section 68 of the West Bengal Sales Tax Act, 1994 (in short, "the 1994 Act"). Subsequently, in a penalty proceeding under section 71 of the Act a penalty of Rs. 1 lakh for each consignment was imposed. The goods being of perishable nature, the applicant had to pay the penalty to get release of the goods. The applicant challenges the seizure and the order imposing penalty. 2.. According to the applicant, the CN seed not being dry or preserved fruit within the meaning of entry 26 of Schedule IV of 1994 Act, is not taxable under the Act. His contention is that CN seed is "fresh frui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the notification, this Tribunal, after considering the real nature of cashewnut seeds, held that such seed is not covered by this notification. The text of this notification is almost identical to entry No. 26 of Schedule IV. Even Mr. J.K. Goswami, learned State Representative, does not dispute this. Thus the seed which the applicant imports into West Bengal is not cashewnut and is not covered by entry 26 of Schedule IV and is accordingly not taxable under section 18 of 1994 Act. 5.. Mr. Bose next contends that the CN seed is not at all taxable because it is "fresh fruit" within the meaning of entry 39 of Schedule I. He contends that a seed is a part of a fruit and hence CN seed comes under the entry "fresh fruit ". But we are unable to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e meaning of entry 39 of Schedule I. In this context Mr. J.K. Goswami, learned State Representative, has referred to the decision of the Madras High Court in the case of Deputy Commissioner of Commercial Taxes, Tiruchirapalli Division, Tiruchirapalli v. Hameed Trading Company reported in [1973] 32 STC 228. The issue, inter alia, before the High Court was whether coconut could be considered "fresh fruit". In giving its decision the honourable court observed: "Would a householder when asked to bring home fruit or vegetable for the evening meal bring home salted peanuts, cashewnuts or nuts of any sort? Answer: Obviously not. If we make the same test for coconuts, we think the same negative answer must follow. It also seems to us that the use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been challenged before us during the hearing. 7.. Mr. Bose submits that even assuming for argument's sake that seizure was valid, it is not necessary to impose penalty simply because law provides for such imposition. According to him, it is not necessary that whenever an importer has failed to obtain way bill for importation of taxable goods, penalty has to be imposed. He refers to the decision of the Supreme Court in the case of Hindustan Steel Ltd. v. State of Orissa [1970] 25 STC 211, and argues that an order imposing penalty for failure to carry out statutory obligation is the result of a quasi-criminal proceeding and penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commensurate with the gravity of the transgression of law committed and the circumstances in which the same is committed. Thus, the factual aspects are to be examined first by the fact finding authorities below. Therefore, the applicant, if he questions the validity of the imposition of penalty or the quantum of the same, he must move the appropriate authorities below agitating his plea in this regard. Hence, we do not make any comment on the desirability or otherwise of imposition of penalty and the quantum thereof. For the redressal of the grievance in that regard the applicant must exhaust the remedies available in the forums below. 8.. We thus declare the impugned seizure valid. The applicant at his option may take recourse to the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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