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TMI Blog2002 (12) TMI 575X X X X Extracts X X X X X X X X Extracts X X X X ..... photographic film in the State of West Bengal. The petitioner is a dealer registered under the West Bengal Sales Tax Act, 1994 (hereinafter referred to as "the 1994 Act") holding registration certificate No. TL/19. 3.. The petitioner after obtaining blank permit to import consignment of photographic film sent it to its clearing agent in the month of September, 1997. On October 10, 1997, the driver of the Reported in [2003] 131 STC 485 (WBTT). vehicle with the consignment of photographic film entered into West Bengal without collecting the blank permit from the agent. The vehicle was detained at Chichira check-post and it was followed by seizure of the entire consignment on October 12, 1997 but due to a public demonstration at Bagnan Rail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication was filed in a wrong forum and the petitioner had already exhausted all the remedies under "the 1994 Act", as soon as the second revision before the respondent No. 1 was duly disposed of. Thereafter, the petitioner filed an application under section 8 of the West Bengal Taxation Tribunal Act, 1987 before the West Bengal Taxation Tribunal praying for setting aside all the three orders dated October 15, 1997, October 18, 1997 and May 6, 1998, passed by the respondent Nos. 3, 2, and 1 respectively. The Tribunal by judgment and order dated April 6, 2001 dismissed the application. The petitioner/appellant, thereafter, challenged the impugned order dated April 6, 2001, passed by the learned Tribunal on the ground that the Tribunal fai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said decision it was argued by Mr. Chakraborty that breach must be related to evasion or avoidance of tax. If that be so, mens rea or deliberate defiance of the provision with intention to evade or avoid liability of tax that may arise as a result of the transaction must be a necessary ingredient before penalty could be levied. 9.. In the decision in the case of WS Tele Systems Ltd. v. Additional Commissioner of Commercial Taxes in Karnataka, Zone-II, Bangalore reported in [1997] 107 STC 568 (Kar) it was held that for levying tax penalty even under taxing statutes, it is incumbent upon the department to prove a guilty intention on the part of the taxpayer in not complying with the statutory requirements. 10.. On behalf of the appellant, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation. Penalty will not also be imposed merely because it is lawful to do so. Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances." 13.. On the other hand, learned counsel for the respondent submitted that the notion that a penalty or a punishment cannot be cast in the form of an absolute or no fault liability but must be preceded by mens rea is not correct. Mr. Laxmi Gupta, learned counsel for the respondent, drew our attention to the decision in the case of R.S. Joshi, Sales Tax Officer, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommunication gap is accepted. 15.. If I admit that dealer had no mala fide motive of evasion of taxes by importing the item into West Bengal and if I admit that the due to the communication gap the dealer could not produce the permit in time, i.e., before seizure, the question arises as to whether there was a chance of evasion of sales tax due to the attempt on the part of the driver to pass the check-post without permit. I think there was a chance of loss of Government revenue." 16.. Interestingly enough, learned Tribunal while disposing of the application under section 8 of the West Bengal Taxation Tribunal Act, held that "even smelling the mala fide attempt of evasion of tax, penalty was reduced to the tune of Rs. 3 lakhs from Rs. 5 la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment and order of the learned Tribunal dated April 6, 2001 which have been sought to be assailed herein, suffer from inherent inconsistencies and lack of reasoning. It is practically not disputed that the petitioner/appellant was very well equipped with necessary permit well before his vehicle was checked at Chichira check-post. The fact that the driver being asked could not produce the permit is also not disputed. Concerned authorities have further appreciated that due to some communication gap, the relevant permit could not be produced. It has been consistently held that there was no mala fide intention. But yet, penalty of Rs. 5 lakhs, subsequently reduced to Rs. 3 lakhs, was imposed without any sufficient reason and it was more or les ..... X X X X Extracts X X X X X X X X Extracts X X X X
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