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TMI Blog2007 (11) TMI 587X X X X Extracts X X X X X X X X Extracts X X X X ..... essories and library racks at its factory situated at Buroshibtala, Behala, Kolkata. The applicant is also a seller of such goods. The goods are either sold by the applicant directly in the market or sent to various branches outside West Bengal on stock-transfer basis. The applicant-company is registered under the VAT Act, 2003 and the Central Sales Tax Act, 1956 holding registration No. 19200710009 and 19200710203, respectively. During the course of its normal business, the applicant despatched 54 packages of library racks materials, 28 packages of plain top gratings and 96 bundles of slotted angles to its branch office at Hyderabad. These were despatched on May 27, 2006. The materials so transferred included some material which had been purchased locally by the applicant from West Bengal. While sending the goods, the applicant raised excise invoice in favour of its branch office at Hyderabad along with challans in respect of the goods manufactured in its factory at Behala. As the consignment contained some of the goods not manufactured in its factory, the applicant raised separate challan and consignment bill in respect of those items. All these goods were loaded in truck ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the goods. Excise invoice clearly indicated that the goods were moving from the applicant's unit to its branch in Hyderabad. It contained all the detailed information and also the challan number. Similarly, corresponding challan contained excise invoice number as well as other details regarding the consignment. The goods which were purchased from local market were supported by challan and consignment bill. Therefore, from this document, the ownership of the goods as well as the ultimate place where this goods would be despatched could have very well been ascertained. Sri Chakraborty, learned Advocate, during the course of hearing, produced copies of relevant stock register folios both in respect of the goods manufactured by the applicant as well as of the goods purchased locally. In the circumstances, it was contended by the learned advocate appearing on behalf of the petitioner that in fact there was no violation of the provision of section 81. It was also contended by Sri Chakraborti that the petitioner had no intention to evade payment of tax. Infringement, if there was any, was purely technical and did not call for imposition of penalty. Sri T.N. Banerjee, learned S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents of title to the goods, two copies of the forwarding note, delivery challan or document of a like nature issued by the owner or consignor of such goods and such other documents as may be prescribed. Such prescriptions have been made under rule 108 of the West Bengal Value Added Tax Rules, 2005. It should, however, be kept in mind that section 81 details measures to prevent evasion of tax on sales within West Bengal. So intention to evasion of tax of a dealer cannot be ruled out while taking steps as per provisions of section 81 of the VAT Act. In the case of R.S. Joshi, Sales Tax Officer, Gujarat v. Ajit Mills Limited reported in [1977] 40 STC 497 (SC), as relied upon by the respondent authorities, the provision of section 37(1), 46(1) and 46(2) of the Bombay Sales Tax Act (51 of 1959) (as applicable to the State of Gujarat) was under the judicial scrutiny. The aforesaid two sections are reproduced here inbelow: 37. (1)(a) If any person, not being a dealer liable to pay tax under this Act, collects any sum by way of tax, or being a registered dealer collects any amount by way of tax in excess of the tax payable by him, or otherwise collects tax in contravention of provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refer to a recent decision dated November 21, 2007 of this Tribunal in the case of Cal-Cox Syndicate Pvt. Ltd. v. A.C.C.T., Kharagpur Range, RN-242 of 2007. The facts of the case in brief were that Birla Tyres imported from Germany 13,338 kgs. of rubber chemicals through Haldia Port. As agent of Birla Tyres, Cal-Cox Syndicate Private Limited took delivery of those chemicals at Haldia Port and arranged for transportation of the said goods to Balasore in Orissa and for the purpose, Cal-Cox Syndicate Private Limited obtained a transit declaration from the check-post at Haldia wherein it was stipulated that the goods would leave West Bengal through Chichira check-post. Though the goods left West Bengal through Chichira check-post, the driver of the vehicle did not produce the said transit declaration at the check-post gate for the purpose of endorsement. The goods entered Orissa through Jamsala check-post of the Orissa Government after getting Orissa way-bill and other required documents endorsed by the authorities of the said check post. Since at the time of leaving West Bengal, no document was produced at the Chichira check-post, the Assistant Commissioner of Commercial Taxes, Khara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tutional scheme, there is no room for mechanical and unreasonable exercise of power. Any kind of arbitrariness is anathema to and runs against the principle of equality enshrined in article 14 of the Constitution. No doubt, interest of the revenue is to be protected but that cannot mean even when there is no possibility of evasion of any tax, penalty is to be imposed in the name of protecting the interest of the Revenue. An omission or infringement amounts to tax-delinquency only if it is likely to have an adverse impact on collection of revenue. In this particular case, all relevant documents excepting the forwarding note/consignment note in respect of the goods manufactured by the applicant at its factory were produced at the time of interception. In the circumstances, we are of the view that there was even no possibility of evasion of tax since all these were duly recorded. In the circumstances, we hold that the seizure was not properly made and, therefore, we set aside the order dated May 30, 2006 of the Sales Tax Officer, Kharagpur Range regarding the impugned seizure and subsequent orders dated June 1, 2006 of the Sales Tax Officer, Kharagpur Range, dated November 6, 2006 ..... 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