9911796707
TMI Blog2002 (6) TMI 583X X X X Extracts X X X X X X X X Extracts X X X X ..... Ludhiana, purchased 73 bales of scoured mohair on highsea sale-basis from M/s. Arindam Export and the sale was effected by transferring document of title in favour of the purchaser as per the Central Sales Tax Act, 1956. That sale took place before the ship came within the territory of India. The purchaser imported the goods therefrom in West Bengal by ship and the goods were released on payment of customs duty at Calcutta port and M/s. Barua and Choudhury acted as clearing agent of the purchaser. As per declaration, goods were to be loaded in two trucks 36 bales in one and 37 bales in another truck. For shortage of space ultimately those were loaded in three trucks 29 bales in each of the two trucks and 15 in another truck. But fresh consignment notes were not obtained. The two consignment notes mentioning 36 and 37 bales were handed-over to the driver along with declaration and bill of entry. When the two trucks WB-19-4048 and WB-11-8947 reached near Durgapur Range Office, the Commercial Tax Officer, Durgapur Range (respondent No. 1) intercepted those two trucks even after two consignment notes, bill of entry and declaration were shown by the driver of the trucks. As per direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion lawful? (b) Is the order imposing penalty is sustainable in law? 5.. The detention order of the vehicle WB-19-4048 is annexure "B" to the application. It shows that after interception on March 10, 2001 at 11.00 p.m., the vehicle has been detained to verify correctness of the way-bill and to verify the genuineness of the papers produced by the driver at the time of interception. The impugned order dated March 13, 2001 imposing penalty for alleged violation of section 72 of the West Bengal Sales Tax Act, 1994 is annexure "C" to the application. It appears that the respondent No. 1 perused lorry challan, consignment note as well as transit declaration. The order thereafter is as follows: "As the consignment is supported by a transit declaration which supports the transit of 73 bales of scoured mohair from Germany to Ludhiana (India) via West Bengal, these 29 bales could have been taken as part of the said consignment consisting of 73 bales of the said item, but as there was no satisfactory explanation about the absence of 8 bales of scoured mohair, there is grave doubt about any probable relationship between the transit declaration covering 73 bales of scoured mohair and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Moreover, he submits, wrong quoting of section cannot exonerate a person or a transporter who failed to comply with the restrictions and conditions made regarding movement of goods to ensure nonevasion of tax. 7.. Having so heard both the sides, as we peruse the fact-situation of this case along with different provisions of the Act of 1994 and the Rules, 1995 concerning restrictions and conditions on the movement of goods, it appears clearly that the regulatory measures as prescribed under rule 211A of the West Bengal Sales Tax Rules, 1995 are to be followed by the petitioner-transporter in this case. Admittedly driver of the petitioner-transporter produced before respondent No. 1 both lorry challan as well as consignment note and the essential transit declaration. The power of the respondent No. 1 to intercept and detain on the way such a truck is undisputed. The officer concerned can do it for the purpose of verification. But the officer cannot, as per rule 212 detain vehicle for more than 48 hours without making out ground of seizure on being satisfied. Unfortunately in this case that procedure of seizure was not at all followed but penalty before seizure was imposed und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact of the instant case wherein goods were loaded in the vehicle at the Calcutta Port after import from Germany for its onwards destination to Ludhiana. In this case detention as per sub-rule (3) of rule 212 can be made for a period not exceeding 48 hours only to enable the driver to present the documents. If within this time the driver fails to produce endorsed way-bill or other necessary document, the officer concerned after recording reasons can seize the consignment of goods. But in this case, there has been no seizure at all. Seizure is an act which must be supported by reasons. Thus the seizure under any circumstances cannot be held to be implied as learned State Representative wanted us to hold. In this case, the initial detention of the vehicle with the goods may be lawful but its prolonged detention even after expiry of 48 hours has become unlawful. The imposition of penalty not having been made as per procedure warranted, also suffers from legal infirmity. The goods cannot be detained and penalty cannot be imposed merely on the basis of assumption of the officer concerned to the effect that the goods found short had been sold. We have already stated that the assump ..... X X X X Extracts X X X X X X X X Extracts X X X X
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