9911796707
TMI Blog2008 (4) TMI 692X X X X Extracts X X X X X X X X Extracts X X X X ..... er 21, 2007 at 9.30 am and December 20, 2007 at 9.45 pm, respectively. On demand the drivers of both the vehicles produced two copies of challans of each of the consignment, issued by the petitioners and two copies of the declaration under rule 107(1) of the West Bengal Value Added Tax Rules, 2005 both dated December 18, 2007. No tax invoices were produced. On December 22, 2007 he produced fax copies of the tax invoices but those were not accepted by the seizing officer. The consignments were seized for non-production of the tax invoices and consequently on December 24, 2007, penalty of Rs. 81,000 and Rs. 2,70,000, respectively, were imposed with observation that there was sufficient ground to believe that the dealer's intention was mala fide. This was confirmed in the revisional applications. Admitting the above fact, the petitioner asserts that both the vehicles were loaded at the same time and the petitioner's employee who was incharge of despatch, inadvertently did not deliver the tax invoices. He challenges the legality of the seizure on the ground that reasons to believe were not recorded before the seizure and that there was no contravention of section 73 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1941. In this case, the consignments were intercepted on December 20 and 21, 2007 and as such in this case the provisions of the West Bengal Value Added Tax Act, 2003 apply. Here, for nonproduction of tax invoices, the consignments were seized under section 76(1) of the Act for contravention of the provision of section 73 read with rule 107. The section 76(1) of the WB VAT Act, 2003 provides, Where, upon interception or search referred to in clause (a), or clause (c), of section 74, the Commissioner, the Special Commissioner, the Additional Commissioner, or as the case may be, any of such persons appointed under sub-section (1) of section 6 to assist the Commissioner as may be prescribed to exercise the power under this section, has reason to believe that any goods are being transported in contravention of the provisions of section 73, or section 81, he shall first detain the vehicle carrying such goods for a period not exceeding forty-eight hours and, if the person bringing, importing or receiving or carryingsuch goods fails to furnish such particulars in such form, or such document, as may be prescribed under section 73, or section 81, shall thereafter seize such goods together ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section. In this reported case this Tribunal did not declare the seizure void in the absence of recording the grounds for seizure beforehand. From these two judgments, we may safely borrow the principle that the ground for seizure should be preexisting and the same should be recorded so that the affected person can have the copy thereof and may challenge the same. In the present case, the ground of seizure was recorded under the heading pre-seizure report and copies thereof were available to the petitioner. Admittedly, the consignments were intercepted at 9.40 pm of December 20, 2007 ant 9.30 am of December 21, 2007. Both were seized on December 22, 2007 on refusing to accept the fax copy of the tax invoice produced on December 22, 2007. In absence of any provision in the statute or rule or of any order of the Commissioner, the seizing officer could not take the risk of accepting the unauthenticated fax copy of the tax invoice. The seizing officer should act within the plain meaning of the statutory provisions. He is not authorised to interpret the provision of law. This is the task of the appellate and revisional authorities. The petitioner does not claim that he could produce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penal proceedings . In RN-65 of 2007 the driver produced the declaration and other documents but could not produce the tax invoice at the time of detention on December 23, 2006 which was Saturday, 25th being a holiday. The time was allowed up to 10.30 am of 26th December and on the failure to produce the tax invoice, the goods were seized after 11.05 am of December 26, 2006. Subsequently on January 23, 2007, penalty was imposed though it was recorded that at 4 pm the tax invoice was submitted. On this fact this Tribunal held that the statutory period of time was not allowed for production of the tax invoice. It further held, considerations for seizure are different from considerations for penalty. The goods may be seized on the ground of non-production of documents or any other technical violation but for the purpose of imposition of penalty, the concerned officer is to consider all the facts and circumstances including the materials produced before him and to record the satisfaction that the contravention or violation afforded an opportunity to the dealer to avoid payment of tax or that he intended to avoid payment of due tax . . . Non-production of the tax invoice at the tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2006 and this challan and declaration contained all the necessary particulars of the consignments. The fact of this case is similar to the aforesaid case Nos. 319 of 2006 and 225 of 2007. So we accept the view of the learned State Representative that the petitioner should bear cost of the respondent for dealing with the petitioner's matter and the petitioner's cost in both the cases can safely be assessed at Rs. 10,000. Hence, it is, ordered that both the applications under RN-39 of 2008 and RN-40 of 2008 are allowed in part with cost of Rs. 10,000 payable by the petitioner within sixty days hereof and in default the bonds furnished by the petitioner would stand forfeited. The impugned orders passed on January 7, 2008 by the Deputy Commissioner of Commercial Taxes, Siliguri range in revision case Nos. R/DC/17/07-08 and R/DC/18/07-08 both dated January 3, 2008 confirming the order passed on December 28, 2007 by Sri P.N. Sherpa, Assistant Commissioner, Commercial Taxes, Siliguri range in Revision Case No. R/AC/15/07-08 dated December 27, 2007 confirming the orders dated December 22, 2007 passed by the Sales Tax Officer, Siliguri range in Seizure Case No. GPCP/69/07-08 an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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