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TMI Blog2008 (1) TMI 861X X X X Extracts X X X X X X X X Extracts X X X X ..... to the order dated August 29, 2004 of the CTO/CCP in transit declaration Case No. 628/ 03-04/CCP. Similarly, the applicant has also challenged the order dated September 9, 2005 passed by the ACCT/KP Range in Revision Case No. 149(TD)/KGPR/04-05 and order dated June 4, 2006 passed by the DCCT/ KP Range in revision Case No. R-18(S)/DC/KGPR/05-06 which were consequential to the order dated August 29, 2004 of CTO/CCP passed in transit declaration Case No. 629/03-04/CCP. Since the issues involved in these two cases were identical and same set of counsels represented the petitioner and the respondents, these cases were heard analogously and are being disposed of by this common order. The facts in respect of both the cases are that the applicant was engaged by M/s. Nahar Exports Limited of 376, Industrial Area, Ludhiana-141 003 to handle transportation of 393 cartons of polyester/cotton yarn from their factory at Mandideep (MP) to Haldia Dock in West Bengal for shipment to Bangladesh from the said Dock. Accordingly, the consignments were booked under consignment Nos. 502443 to 502445 all dated February 17, 2003. In respect of both the cases, the country of ultimate importer, consignee, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notes or documents of a like nature endorsed at the check-post to establish exit of the goods in question from West Bengal. Since the applicant failed to produce transit declaration and other relevant documents endorsed by the last check-post authority (Haldia check-post authority in this case) before the authorities of Chichira Check-post, it was held by them to be a violation of the provision of the said section and the authorities concerned initiated two transit declaration cases bearing Nos. 628 of 2003-04 and 629 of 2003-04. The representative of the applicant was heard on August 29, 2004 and thereafter by an order of the said date imposed penalty of an amount of Rs. 1,81,896 in respect of transit declaration Case No. 628 of 2003-04 and in respect of transit declaration Case No. 629 of 2003-04, penalty to the tune of Rs. 2,65,324 was imposed. These orders of the CTO/ CCP were appealed again and in appeal, ACCT/KP Range modified the quantum of penalty to Rs. 90,000 in respect of transit declaration Case No. 628 of 2003-04 and Rs. 1,30,000 in respect of transit declaration Case No. 629 of 2003-04. The petitioner filed further revisions against these orders of ACCT/KP Range. DCCT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to in sub-section (5) of section 72 of the 1994 Act is satisfied, for reasons to be recorded in writing, that the transporter has contravened the provision of this section, he may, after giving the transporter a reasonable opportunity of being heard impose, by an order to be passed in the prescribed manner, such penalty not exceeding twenty-five percentum of the value of goods so transported, as may be determined by him in accordance with the Rules made under this Act. But we are of the view that penalty cannot be imposed mechanically. It must be proved that because of violation of the provision of sub-section (4) of section 72 of the 1994 Act, an opportunity was created to evade payment of taxes. We would like to discuss here decision of this Tribunal in Case No. RN242 of 2007 (Cal-Cox Syndicate Pvt. Ltd. v. A.C.C.T., Kharagpur Range [2009] 19 VST 108 (WBTT)). In that case, Birla Tyres imported from Germany 13,338 kgs. of rubber chemicals through Haldia Port. Those were to be sent to Balasore in Orissa. Birla Tyres obtained a transit declaration form from the sales tax check-post within the Haldia Port area and in the said declaration, it was mentioned that the goods in ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 185 and Dilip N. Shroff v. Joint Commissioner of Income-tax, Mumbai [2007] 291 ITR 519 (SC); [2007] 6 SCC 329 (SC) and observed if penalty is imposed only on the basis of an infringement without having any bearing or impact upon the revenue of the State, it will be an arbitrary and irrational exercise of the power. All powers are to be exercised in a rational and fair manner. Rules framed for achieving the purpose of section 68 require production of several types of documents at the entry or exit checkpost. For example, an importer or its transporter may have all the required documents excepting way bill. If the said importer or transporter voluntarily stops at the entry check-post, himself/itself produces all the documents excepting the way bill, discloses all the material particulars regarding the imported consignment enabling recording of the import, absence of way bill, though an infringement, cannot have any adverse impact on the revenue of the State. If prescribed penalty, which is quite heavy, is imposed for the infringement of non-production of way bill, in such cases it will be an unreasonable and unfair exercise of the power. In our view, consequence of the infringement ..... X X X X Extracts X X X X X X X X Extracts X X X X
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