TMI Blog2000 (5) TMI 987X X X X Extracts X X X X X X X X Extracts X X X X ..... ate, with him), for Appellant. Gopal Chandra Chakravarty, and Subodh Markandeya, Senior Advocates (Udayan Chakravarty, Advocates, With them), for the respondent. -------------------------------------------------- The judgment of the Court was delivered by SYED SHAH MOHAMMED QUADRI J. -Leave is granted in the connected matter S.L.P. (Civil) No. 19573 of 1996. These two appeals raise an identical and interesting question of law. C.A. No. 12060 of 1996 is filed by the State of West Bengal challenging the validity of the judgment of the West Bengal Taxation Tribunal (for short, "the Tribunal") in Case No. 20 (T) of 1994 dated January 11, 1996, by which the application filed by the respondent was allowed and the impugned demand of tax and penalty was quashed. That judgment was followed by the Tribunal in Case No. RN-192 (T) of 1995, filed by the respondent which was allowed quashing the demand of tax and penalty on February 20, 1996 which is assailed in C.A. No. 3296 of 2000 at S.L.P. (Civil) No. 19573 of 1996. 2.. Adverting to the facts giving rise to C.A. No. 12060 of 1996, the entry tax authority (for short, "the authority") carried out a raid on the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent cannot be called upon to prove that he did not bring the goods from outside into Calcutta metropolitan area. There is no provision in the Entry Tax Act placing the burden of proof on the possessor of specified goods to show that he has not brought the goods from outside. Observing that the conduct of the respondent might be highly suspicious, the Tribunal held that no material was placed on record by the authority to establish that the goods in question were brought from outside the Calcutta metropolitan area and it was actually the respondent who brought the goods in the Calcutta metropolitan area. In view of this finding, the Tribunal allowed the application of the respondent, set aside the demand of entry tax as well as penalty and directed refund of the tax to the respondent within 12 weeks from the date of the judgment dated January 11, 1996. 4.. Mr. Tapas Ray, learned Senior Counsel for the appellants, contended that the Tribunal committed grave error by proceeding on the basis that the burden of proof of showing that the goods were brought within the entry tax area and without payment of entry tax, was on the authority and if that were to be so, the provisions of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to section 6 of the Entry Tax Act, the charging section, which reads thus: "6. (1) Save as otherwise provided in this chapter, there shall be levied and collected, for the purposes of this Act, a tax on the entry of every specified goods into the Calcutta metropolitan area (for consumption, use or sale therein) from any place outside that area, at such rate, not exceeding the rate specified in the corresponding entry in column 3 of the Schedule, as the State Government may, by notification, specify. (2) Subject to such Rules as may be made by the State Government in this behalf, no tax shall be levied and collected under this Act on the entry of any specified goods into the Calcutta metropolitan area if such goods are brought into that area- (a) as personal luggage by a passenger and the value or the number or quantity thereof does not exceed the prescribed amount of limit, as the case may be, or (b) in such circumstances and subject to such conditions and restrictions as may be prescribed." 7.. A perusal of this provision shows that: (i) the tax is on the entry of every specified goods into Calcutta metropolitan area; (ii) the goods must enter from any place outsid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cutta metropolitan area; (iv) a purchaser of specified goods which are sold after entry under the provisions of any law on the consignee of such goods not taking delivery of the goods on their entry in the Calcutta metropolitan area either by rail, road, water, air or post. 10.. Section 13 of the Entry Tax Act imposes an obligation on every dealer of specified goods to deliver a declaration, in the prescribed form, on or before entry of such goods into the Calcutta metropolitan area. He is exempted from giving such a declaration if the specified goods are exempted by sub section (2) of section 6, section 7 or section 8 from payment of any tax leviable under the Entry Tax Act. 11.. Section 14 of the Entry Tax Act deals with assessment of tax. It enjoins the prescribed authority to assess the tax leviable on the entry of such goods into Calcutta metropolitan area, where a declaration has been made under section 13 of the Entry Tax Act by a dealer, after making such verification of the specified goods as he may consider necessary before assessing the tax on the goods. Sub-section (2) takes care of the situation where the dealer has failed or omitted to make the declaration as re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a case, which is treated an aggravated violation of the provisions, the prescribed authority has to assess the tax on such goods and also to impose penalty, in the prescribed manner, not exceeding ten times the tax assessed by it on the dealer. The first proviso says that the assessment of the tax has to be after inspection and verification of such goods. It also provides for what can be termed as the "best judgment assessment" when such goods are not available for inspection and examination for the reason that either they have been disposed of or concealed or mixed with any other goods. The second proviso requires that the dealer be given a reasonable opportunity of being heard before the imposition of penalty. 13.. A plain reading of sub-section (6) shows that it empowers the prescribed authority to require any dealer to produce before it any accounts, register or document for examination and to furnish any information relating to the stock of goods or purchases, sales or deliveries of goods by the dealer or relating to any other matter, as may be deemed necessary, for the purpose of section 14 of the Entry Tax Act. The prescribed authority is also empowered to require any pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st be borne in mind that before the tax could be imposed under sub section (3) of section 14 of the Entry Tax Act, the authority will have to be satisfied of the requirements noted above. Without there being any material to show that the specified goods in the possession of the respondent have been brought into the Calcutta metropolitan area and that they were brought without payment of any tax leviable thereon, no tax can be levied under sub-section (3) of section 14 even on a dealer. It cannot be lost sight of that the tax under the Entry Tax Act is a tax on the entry of the specified goods into the Calcutta metropolitan area and not on possession of the specified goods within the Calcutta metropolitan area. 17. However, the contention of Mr. Chakravarty is that when specified goods are found in possession of a person and when he, on being required to produce before the authority any accounts, register or document under sub-section (6) of section 14, has failed to do so, a presumption arises that the specified goods have been brought by him into the Calcutta metropolitan area without payment of tax. We are afraid, we cannot accede to this contention. A presumption is a rule of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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