State Taxation Tribunal - West Bengal
Prabhu Kumar Gupta vs Acct/Central Section And Ors. on 25 January, 2002
Equivalent citations: [2002]128STC313(TRIBUNAL)
JUDGMENT
1. This is an application under Section 8 of the West Bengal Taxation Tribunal Act, 1987, praying for setting aside the order of penalty passed by respondents Nos. 1 and 2 on September 6, 1999 and February 11, 2001 respectively.
2. On August 5, 1999, the Truck No. HR 46/9855 loaded with the consignment of goods being imported by the petitioner was seized at Duburdih Check-post on the ground that the way bill did not correctly show the weight of the consignment of goods being transported. The way bill produced by the driver of the truck showed that 11,600 kgs. wares, 6,000 kgs. S.S. circles including 150 kgs. S.S. strips were being imported whereas on checking S.S. wares 19,305 kgs., S.S. strips 150 kgs. and S.S. circles 1,200 kgs. were found to be imported from Delhi. Since there was discrepancy in between the consignment of goods and the relevant documents, the goods were seized by the respondent No. 1, Assistant Commissioner, Commercial Taxes.
3. Challenging the order of the seizure an application was filed before this Tribunal and it was held that the seizure was valid. The said order was challenged before the honourable High Court and the honourable High Court by an order dated October 12, 1999 held that detention of the goods so much covered by the way bill was wrong and could not be seized. The order of penalty however, was not challenged before the honourable High Court.
4. The Assistant Commissioner, Commercial Taxes, i.e., respondent No. 1 initiated penalty proceeding and imposed penalty of Rs. 5,45,870 by an order dated September 6, 1999. The said order was confirmed also in revision by respondent No. 2 by an order dated October 11, 2001. It is prayed that the purported seizure and the impugned order dated September 6, 1999 and October 11, 2001 being illegal are liable to be set aside.
5. It is submitted on behalf of the petitioner that respondents Nos. 1 and 2 illegally seized the goods and refused to release the same though covered by the way bill. It is the case of the respondents that total number of boxes containing stainless steel wares was recorded as 270 and total number of boxes of stainless steel strips was 110 whereas, on verification 356 boxes of stainless steel wares and 24 boxes of stainless steel circles and stainless steel strips were actually found. Therefore, there was no variation in total number of boxes so recorded in the way bills. Hence, at least 270 boxes of stainless steel wares covered by the way bill and 20 boxes of stainless steel circles ought not have been seized. The total number of boxes loaded on the truck did not vary with the way bills produced by the driver of the truck. The orders of penalty therefore, are bad in law and liable to be set aside.
6. The learned State Representative submits that the authority may be directed to act in accordance with law and the order passed by the honourable High Court. The impugned orders may be modified accordingly directing the concerned authority for release of the goods in compliance of the order of the honourable High Court.
7. Having considered the submissions of both the sides and going through the order dated October 12, 1999 of the honourable court, it transpires that the order of penalty, since a portion of consignment of the goods was declared to be illegal, required to be modified. The honourable court held as follows :
"The penalty has been imposed in respect of the entire consignment. It appears to us that the detention of the entire quantity covered by the consignment in the circumstances of the case was wrong. The only discrepancy which remains is the difference between the weight as allegedly found by the respondent No. 1 in the goods and the weight as declared in the way bill. As no challenge has been thrown to the penalty order as yet, we dispose of this writ application by directing the respondents to release so much of the consignment as was covered by the weight as mentioned in the way bill to the petitioner subject to the petitioner executing a bond covering the amount for which penalty has been imposed. This bond shall be valid until disposal of the revisional application, if filed by the petitioner challenging the penalty order, and subject to such decision of the revisional authority."
8. In view of the findings of the honourable High Court the orders passed by the learned Deputy Commissioner, Commercial Taxes and Assistant Commissioner, Commercial Taxes are hereby set aside. The learned Assistant Commissioner, Commercial Taxes, shall take steps for release of such part of the goods as per direction of the honourable court covered by the way bill and reopen the penalty proceeding accordingly, as if the remaining part of the goods were seized for violation of the provisions of Section 68 of the West Bengal Sales Tax Act, 1994.
9. Steps to be taken by the learned Assistant Commissioner, Commercial Taxes for re-hearing of the matter giving opportunity to the petitioner of being heard after due service of notice. The impugned orders dated September 6, 1999 and October 11, 2001 are accordingly set aside so far as it relates to the release of the goods covered by the way bill.
10. With these observations we allow this application. No order as to costs.