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1991 (11) TMI 247

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..... ad in U.P. to its sales office at Asansol by way of stock transfer through Sugam Parivahan Ltd. of Dariaganj New Delhi having branch office at Calcutta, in truck No. BHB 5295. T.V. sets are notified commodities under section 25 of the 1954 Act. The driver of the vehicle carried with him invoice Nos. 393, 394, 483 and 541 dated August 14, 1989 and the consignment note No. 11115 of the same date issued by the transporter-company. On August 21, 1989 at about 7.50 p.m. the truck reached but did not enter Duburdih check-post. It was parked at roadside. On receipt of information of despatch of the said consignment, the Calcutta office of the applicant applied on August 18, 1989 to respondent No. 1, the Commercial Tax Officer, Alipore Charge, for necessary road permit under the 1954 Act, and visited the office of the respondent No. 1 on subsequent dates except on August 20, 1989, which was a sunday. But the permit was issued only on August 22, 1989. On the same date, the Calcutta Manager of the transporter company rushed to Duburdih check-post and produced the permit before the Inspector of Commercial Taxes. The Inspector refused to accept the permit on the ground that the consignment .....

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..... at 7.56 p.m. truck No. BHB 5295 entered the notified area on its way to Asansol. As the driver failed to produce sales tax permit for the commodities, the consignment was seized at 11.50 p.m. on August 21, 1989. Notice of penalty proceedings to be heard on September 20, 1989 was served on the driver on August 22, 1989. During the period from August 22, 1989 to September 15, 1989, no one on behalf of either the owner of the commodities or the transporter met any check-post official. On September 16, 1989, the driver accompanied by one Mr. S.K. Pal, said to be an advocate, met the check-post official on duty and requested by petition that the penalty proceedings be heard on that date. Accordingly, hearing of the proceeding was advanced and completed on September 16, 1989 itself, instead of on September 20, 1989. At the time of hearing, Mr. Pal submitted that though application for permit was filed on August 18, 1989, permit was not issued, as original documents were not furnished. Permit was issued on August 22, 1989 when original documents were produced. Even on September 16, 1989, the driver failed to produce the permit on the plea of some communication gap. Thereupon the penalty .....

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..... commodity exceeding prescribed quantities and except in accordance with prescribed conditions which shall be made with a view to ensuring that there is no evasion of tax imposed by the 1954 Act. Section 7 authorises appropriate officer to seize any notified commodities referred to in section 6 which, he has reason to believe, are being transported in contravention of the provisions of section 6. The conditions have been prescribed in certain rules, one of which is rule 15. That rule speaks of requirement of obtaining permit for transportation of such commodities and production of such permit before Officer-in-charge of check-post, when any such consignment is being transported across or beyond the notified area of a check-post. Rule 15(i) provides setting up of check-posts for the purpose of regulating, inter alia, road transport, for defining the boundaries of check-posts, for notifying under section 6 the areas of checkposts included within boundaries and for demarcating such boundaries by means of barriers or otherwise. Thus, upon reading sub-section (1) of section 6 and rule 15 of the 1954 Rules, it is clear that a check-post is not the only place from where transportation wit .....

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..... n August 22, 1989. 9.. A plea has been taken in the application that the officer who seized the consignment had no reason to believe that it was being transported in contravention of section 6. It was contended on behalf of applicants that contravention of section 6 can arise where there is intention to evade the tax. According to us, section 6 and the rules by which the conditions are prescribed are regulatory measures for ensuring that there is no evasion of tax. Provision for obtaining and production of permit is made for giving effect to the regulatory measures, which are an integral part of the scheme to ensure that there is no evasion of tax. Entry into the notified area and non-production of a permit prima facie would provide a reason to believe to the appropriate officer acting under section 7(1)(ii) of the 1954 Act. Therefore, we do not agree with the submission that at the time of seizure of the disputed consignment, the Inspector had no reason to believe as required under section 7(1)(ii). 10.. Mr. Sanjoy Bhattacharya, learned advocate for the applicant, drew our attention to a decision of this Tribunal in the case of Hindusthan Lever Limited v. State of West Bengal .....

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..... preferred from that order. If already preferred, it is appropriate that the aspects of reasonable opportunity for production of permit in terms of the decision in Hindusthan Lever Limited v. State of West Bengal [1990] 76 STC 155 (WBTT) and all other relevant factors including the point whether respondent No. 1 was responsible for delay in issuing the permit should be agitated before the competent authority who should consider the same and dispose of the appeal/revision. If no such appeal/revision has been preferred till now, we consider this as a fit case where, to meet the ends of justice, an opportunity should be given to challenge the order of penalty in the appropriate forum, although the prescribed time for preferring appeal/ revision might have already elapsed. 13.. In the result, we hold that the seizure of impugned notified commodities on August 21, 1989 was valid. We do not express any views on the propriety or otherwise or the quantum of imposition of penalty of Rs. 1,20,000. If any appeal/revision has already been preferred against the order of penalty, the appropriate authority before whom such proceeding is pending, shall consider all aspects of the matter, as dis .....

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