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TMI Blog1998 (5) TMI 397X X X X Extracts X X X X X X X X Extracts X X X X ..... eters from the check-post. The transporter had instructed the driver, as usual, in writing to contact Mr. Goel before going to the check-post. 2.. The driver by mistake did not contact Mr. Goel but came directly to the check-post where the goods were intercepted at 8 A.M. and seized the same day at 10.30 A.M. A penalty proceeding was immediately started, notice of hearing in form 44 was issued on the same day, and the next day after hearing a penalty of Rs. 1,22,500 was imposed, even though the permit was produced at the time of hearing. Notice of demand in form 45 addressed to the applicant at Calcutta was given to the driver the same day. 3.. The respondents dispute this version of the events. According to them the driver, when asked by the patrolmen on duty at the check-post gate, refused to produce any documents and forcefully tried to drive away. The patrolmen on gate duty chased and stopped the vehicle. That is how the interception took place. The driver then produced some papers which did not include the permit in form 41. 4.. Mr. S.N. Bose, Advocate appearing for the applicant argues that there could arise no question of driving away from the checkpost gate because th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es the suggestion that he came to the check-post without the permit by mistake. Moreover, there was no point giving him much time to produce the permit because he did not want to produce it as proved by the fact that he did not contact the clearing agent before he came to the check-post, nor did, ask for time for that purpose. The place where the seizure took place is not a closed place and there is no dispute about the goods seized and hence the absence of independent witnesses, other than the two patrolmen on duty, does not invalidate the seizure. Mr. Mukhopadhyay submits that producing the permit in form 41 at the time of hearing of penalty proceeding is not adequate compliance of the law. The permit is to be produced, as per rule 212(4) of the West Bengal Sales Tax Rules, 1995, before an officer of the check-post who will only then allow the movement. The Rule does not envisage a production twenty four hours after a driver attempts to forcefully drive away from the check-post without having the permit with him. If a vehicle is successful in getting away and is later intercepted somewhere on its way to Calcutta, production of the permit will not be sufficient unless it has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, giving time unwanted was not necessary. Moreover, as is claimed, the permit was lying with Mr. Goel only three kilometer away and the driver could have produced it within the time that he actually got. In view of this position and in view of the fact that section 70 indicates only the upper limit of the period of detention before seizure and does not lay down a statutory lower limit-the lower limit would thus depend on the circumstances of each individual case-we cannot accept the applicant's submission that the seizure is illegal on this ground. 8.. The decision of this Tribunal in the case of Hindusthan Lever Ltd. reported in [1990] 76 STC 155, was relied on by the applicant. In this case the consignments were being carried by new transporters and the drivers being unaware of the system of operation, reached the check-post without contacting the applicants' agents and, therefore, without having the permits with them. The goods were seized and, after hearing, value was determined and penalty was levied. The Tribunal held that the opportunity of being heard, before imposition of penalty, must not be confined to the question of valuation and quantum of penalty alone, but shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 100 of the Criminal Procedure Code cannot apply here. This Tribunal has observed in the case of Ajanta Organisation v. Commissioner of Commercial Taxes (RN-116 of 1995*) and reiterated in case of Mogan Ramji Bajoria v. Commissioner of Commercial Taxes (RN-113 of 1995) as well as in Md. Masroor v. C.T.O., Central section (RN-102 of 1994) that though section 100(4) and (5) relate to searches and seizures at "places", section 100(1) of the Criminal Procedure Code deals with "a place" which is closed and besides, sub-section (6) of section 100 amply makes it clear that sub-sections (4) and (5) of section 100 can hardly apply to seizures on roads or in the open in so far as it stipulates that the occupant of the "place" searched shall be permitted to attend the search and a copy of the seizure list should be delivered to him. Accordingly, we hold that the seizure from the truck cannot be said to have been vitiated by the lack of independent witnesses. 11.. The applicant has challenged the propriety of imposition of penalty on the ground that the applicant had no intention to evade the tax, and the driver came to the check-post without the permit by mistake. He further submits, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plying for the permit the applicant had indicated that its saleable value is approximately 1,69,000 rupees. In other words its saleable value was a little more than Rs. 14 per kilogram. The officer imposing the penalty disbelieved this value and according to his best judgment determined the value to be Rs. 4,90,000. In other words, according to him, the saleable value was a little more than Rs. 41 per kilogram. Applicant contends that the C.T.O. while imposing the penalty erred in not accepting the saleable value given in the application in form 40 on the basis of which permit was granted after verification of all documents. But section 71 specifically mentions the maximum penalty to be 25 per cent of the value of goods as may be "determined by him". The applicant alleges that the value determined by him is arbitrary. The C.T.O. does not say anything specific about the basis of this valuation except that it is according to his best judgment. No doubt, an estimation by best judgment may take into account an element of guess-work, but it is nevertheless a "judgment" and hence must have some basis. It cannot be without any basis at all. So, the value determined by the C.T.O. cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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