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TMI Blog2007 (1) TMI 520X X X X Extracts X X X X X X X X Extracts X X X X ..... r quashing and/or setting aside a notice in form 44A, issued by respondent No. 1 under section 71B of the West Bengal Sales Tax Act, 1994 and for consequential relief and for incidental costs and on the grounds stated therein. The facts and circumstances leading to this application are: That the petitioner is a firm under the Indian Partnership Act of 1932 and, inter alia, carries on business as a "customer clearing authority and forwarding agent" and in most of the cases uses to engage to clear the goods after complying with all the formalities from customs department posted at the "sea-port". The petitioner allegedly uses to get the imported goods assessed by the customs authority and thereafter makes arrangement for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner to show cause why penalty under section 71B of the said Act of 1994 shall not be imposed. In the said notice respondent No. 1 mentioned transportation of goods under T.D. Case Nos. 402, 409, 211, 334 and 335 dated October 11, 2002, October 17, 2002, August 7, 2002 and August 9, 2002. On receipt of the said notice the petitioner made representations before respondent No. 1 that the petitioner had no liability as soon as the goods were handed over to the transporter and, therefore, it had no obligation to comply with the notice issued under section 71B of the said Act of 1994 but the petitioner, under protest deposited Rs. 1 lakh by challan and hence this application. By affidavit-in-opposition the material averments made in the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the application that it was neither the importer nor the agent of the importer of the consigned goods but only acted as the customs clearing agent to get the imported goods cleared from the customs authority and took delivery of the goods to hand over the same to the transporter or directly to the importer but nowhere in the application the name of the importer and/or of the transporter and their particulars have been mentioned. No document has also been filed to show that the petitioner has acted as a mere custom clearing agent in respect of the consignment of the goods in question. Nothing has also been stated in the application and/or has been substantiated by documents as to the place wherefrom the goods were dispatched and the ultimate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorities only are to issue show cause notice and to impose penalty but as the section 71B of the said Act of 1994 does not authorise respondent No. 1 to issue the impugned show cause notice respondent No. 1 cannot get the authority to issue the impugned notice by virtue of rule 227A as it is a well-settled principle of law that rule cannot override any Act and hence the impugned notice is bad, illegal and declared to be null and void. It is further contended by Mr. Chakraborti that even if the impugned notice is found to be valid the allegation of contravention of the provision of section 68 of the said Act of 1994 cannot be applied in this case as the petitioner never acted as the importer or the transporter of the goods but only as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 71B of the Act of 1994 is concerned the contention of Mr. Chakraborti that as the provision of section 71B does not empower respondent No. 1, the Assistant Commissioner, to issue any such notice and the Commissioner has also not delegated such power on respondent No. 1, the impugned notice is bad in law and the penalty imposed thereunder is illegal, does not also hold good to accept. It is a fact that for imposition of penalty under section 71B of the Act of 1994 the procedure prescribed under section 71A read with rule 227A of the Rules of 1995 is applicable and initially only the Commissioner and Additional Commissioner were empowered to issue the required notice but that is not all to us. It is contended by the respondents in their aff ..... X X X X Extracts X X X X X X X X Extracts X X X X
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