Calcutta High Court
Sri Amar Kumar Bose vs The State Of West Bengal on 8 August, 2000
Equivalent citations: (2001)1CALLT141(HC)
ORDER D.P. Sengupta, J.
1. This revisional application is directed against an order dated 15.5.2000 passed by the learned Chief Judicial Magistrate, Jalpaiguri, in C.R. Case No. 160/2000 under section 46A of the Bengal Excise Act thereby rejecting the application of the petitioner for return of the seized articles.
2. The fact of the case in brief is that a truck bearing Registration No. NL-05A/7847 was stationed in front of Mal Police Station compound at about 1.05 p.m. on 16.4.2000. It is alleged that the driver of the truck on being challenged failed to produce any document to justify the possession of the articles loaded in the said truck. The entire consignment of 1218 cartoons of Beer was seized. The aforesaid seizure was reported to the learned Chief Judicial Magistrate, Jalpaiguri on 17.4.2000 and the driver of the said truck was arrested and forwarded to the learned Magistrate on the same date. An application for return of the seized articles was made by the consignor company, namely, M/s. Yuksom Breweries Ltd., Malli Bazar, South Sikkim through their authorised representative (the present petitioner). The learned Chief Judicial Magistrate, Jalpaiguri by His order dated 16.5.2000 rejected the prayer for return of the seized articles. Against such order of rejection the petitioner has come up before this Court in revision.
3. Mr. Biplab Mitra, the learned Advocate appearing for the petitioner submits that in the present case the admitted and undisputed position is that the seized Beer were product of Yuksom Breweries Ltd., Sikkim and were destined to reach Silchar in Assam. The said transaction was carried on under a valid Import Permit issued by the Government of Assam and connected transit Pass issued on payment of excise duty to the Government of Sikkim. No part of manufacturing was carried on within West Bengal, nor it was imported in the State of West Bengal for consumption within the State. Mr. Mitra points out that Yuksom Breweries Ltd. received Import Pass from the State of Assam for carrying 10920 Bulk Litres India Made Foreign Liquor through Import Pass No. III-41/94-95/PT-II/418 dated 6.4.2000 and also Import Pass No. III/41/94-95/PT/11563 dated 7.4.2000 each of 5460 Bulk Litre issued by the Commissioner of Excise, Assam. The said goods were to be transported to Barrak Vally Bonded Ware House, Silchar, Assam.
Mr. Mitra further points out that on receipt of the Import Pass as indicated above for legal transhipment the company obtained transit pass being serial No.67 dated 13.4.2000 and serial No. 70 dated 15.4.2000 in respect of the aforesaid two Import Passes for carrying 5460 Bulk Litre of Liquor in each Vehicle. Mr. Mitra submits that both the transit passes referred to above were checked by the Authority concerned for carrying the Beer from the Company at Malli Bazar to M/s. Barrak Vally Bonded Ware House, at Assam.
4. It is the submission of learned Advocate of the petitioner that two small vehicles bearing Nos. SKO3-0968 and SKO3-0143 were loaded with 700 Cartoons each for carrying the consignment from the hilly area to Siliguri, at the Company's Bonded Ware House for transhipment to Assam. Thereafter the entire consignment of the said two small vehicles was reloaded on a truck bearing No. NL 05A/7847 having capacity to carry the same. According to the petitioner's learned advocate the seized Beer was being carried legally after complying with all legal formalities as required for exporting the liquor from one state to another state i.e., from Sikkim to Assam using the corridore of the State of West Bengal.
5. Mr. Mitra, the learned Advocate further submits that the Yuksom Breweries Ltd. with the permission of the Government of West Bengal has set up a Bonded Ware House in this State at Siliguri for transhipment of its product to the state other than State of West Bengal and for the said purpose the company is under an obligation to bear the establishment charges which is to be paid to the Government of West Bengal. Mr. Mitra further submits that every transhipment of product of the company is checked and supervised by the Excise Officer posted at the said Ware House. By annexing a document being the Register of the Ware House a supplementary affidavit has been filed on behalf on the petitioner. Drawing the attention of the Court to the said document (Register of the Ware House) Mr. Mitra submits that the said document indicates that the transhipment of the aforesaid consignment from Sikkim to Silchar, Assam through the Bonded Ware House was checked, verified and found to be correct by the Officer of the Excise Department posted at the Bonded Ware House as also Officer of the Commercial Tax Department, Government of West Bengal.
6. Mr. Mitra, the learned Advocate draws my attention to the provision of Rule 116 of the West Bengal Excise (Foreign Liquor) Rules, 1998. Clause (ii) of the said Rule 116 provides as follows :--
116. (i) * * * * "(ii) A privilege fee as prescribed in Rule 117A of these rules shall be paid by the licensee for deposit and storage of beer in the warehouses without payment of duty. The Excise Officer-in-Charge of the Warehouse shall allow storage of beer therein only on prior realisation of the privilege fee through a Personal ledger Account to be maintained by the licensee for the purpose :
Provided that the provisions of this clause shall not apply to beer manufactured in Sikkim and stored in West Bengal for transhipment to any State other than West Bengal."
7. A plain reading of the said Rule gives a clear indication that the Beer produced in Sikkim and meant for transhipment to any other State other than West Bengal has been exempted from the Rigor of the said Rules. In the aforesaid context the articles seized being a product manufactured in Sikkim and meant for transhipment to a State other than West Bengal (in the present case Assam) is fully covered under the provision of the said Rules. Finally it is submitted by the learned Advocate of the petitioner that the seized Beer being a perishable commodity, which is kept without any proper care, is likely to become unfit for human consumption and considering the facts and circumstances of the case the seized Beer should be returned to the present petitioner on furnishing proper bond.
8. Mr. Sudipto Moitra, the learned Additional Public Prosecutor appearing for the opposite party vehemently opposes the present application for return of seized Beer. He draws may attention to section 2 (11) and (12) of the Bengal Excise Act where the Words "import" and "Export" have been defined. Mr. Moitra draws my attention to section 27 of the Bengal Excise Act which specifies the articles upon which Excise Duty can be levied. They are (a) any excisable article imported (b) any excisable article exported (c) any excisable article transported (d) any excisable article manufactured under a licence granted under this Act etc. According to Mr. Moitra the present case is a clear case of import by the present petitioner and as such the import made by the petitioner without payment of duties is absolutely illegal and for that the petitioner is liable for prosecution under section 46A of the Bengal Excise Act.
9. I have heard the learned Advocates of the respective parties and I have gone through the relevant papers and documents supplied by the learned Advocate of the petitioner as also the learned advocate appearing for the State. In my considered opinion there is sufficient merit in the submission of Mr. Mitra, the learned Advocate for the petitioner. From the document produced it is clear that Yuksom Breweries Ltd with the permission of Government of West Bengal has set up a Bonded Ware House in this State at Siliguri for the transhipment of its product to the State other than State of West Bengal. For the said purpose the company is under an obligation to bear the establishment charges which is to be paid to the Government of West Bengal. From the two Challans which are annexed as annexure 'B' and annexure 'C' to the supplementary affidavit filed by the petitioner it appears that such establishment charges have been duly paid by the petitioner's company. Proviso to Clause (ii) of Rule 116 of the West Bengal Excise (Foreign Liquor) Rules, 1998 clearly indicates that the provision of the said clause shall not apply to the Beer manufactured in Sikkim and stored in West Bengal for transhipment to any State other than the State of West Bengal. The Excise Duty is leviable in respect of excisable articles imported for consumption in West Bengal from any other State or outside. The Excise Duty is also leviable in respect of any article manufactured and exported from West Bengal. In the present case the transaction was carried on under a valid import permit issued by the Government of Assam and connected transit pass issued on payment of Excise Duty to the Government of Sikkim. No part of the manufacture was carried on within the State of West Bengal, nor it was imported in the State of West Bengal for consumption within the State of West Bengal.
10. Considering the facts and circumstances of the case I am of the view that this is a fit case for interference by this Court. In such circumstances I allow this application and direct that the seized articles as mentioned in annexure 'A' to this revisional application be returned to the present petitioner on furnishing proper Bond to the satisfaction of the learned Chief Judicial Magistrate, Jalpaiguri and on condition that the petitioner shall produce the said articles as and when called for by the Court. The application is accordingly disposed of. The learned Magistrate will return the seized articles on being satisfied that the petitioner is the constituted Attorney of the Consignor Company, namely, M/s. Yuksom Breweries Ltd, Malli Bazar, South Sikkim.
11. I also make it clear that this order shall not stand in the way of the learned Magistrate in deciding the case independently without being influenced in any way by this order.
Criminal section is directed the supply the urgent certified copies of this order to the restrictive parties at an early date.
12. Application disposed of