TMI Blog2000 (8) TMI 1062X X X X Extracts X X X X X X X X Extracts X X X X ..... Company Clearing Agencies (Private) Limited of 162 Mahatma Gandhi Road, Calcutta-700007, a consignment of lead ingot supplied by a company in Australia. The applicant-company had placed an order with an Australian company for the purpose of using the same, after getting the said lead ingot converted into lead oxide, in the manufacturing activity of the applicant. After taking delivery of the goods on behalf of the applicant, the clearing agent took the goods through the sales tax check-post at Calcutta Port on March 25, 1999 and was transporting it in truck No. WGH 2591, when respondent No. 1 intercepted the vehicle and asked the driver to produce the way bill in respect of the goods being transported. Since there was no way bill, respondent No. 1 detained the vehicle at Beliagata Road, Calcutta-700015 and subsequently seized the consignment, on the alleged ground that there was contravention of the provisions of section 68 of the 1994 Act. He also imposed a penalty after giving the applicant a hearing. In this application, this seizure and the imposition of penalty have been challenged. 3.. It is not clear what actually happened when the consignment, which was subsequently seize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules were attracted, not section 72 and rule 223 under which the declaration was made. Section 68 read with rule 211 enjoin that the consignment should be accompanied by a way bill and not a declaration. Respondent No. 1 therefore held in his order dated April 29, 1999 that since the consignment when intercepted was not accompanied by a duly endorsed way bill, section 68 had been violated and imposition of penalty under section 71 was called for. He imposed a penalty of Rs. 1,65,850. 5.. Shree Sumit Kumar Chakraborty, learned advocate appearing for the applicant, categorically stated that the vehicle was not passing through West Bengal, that its destination was not Hyderabad but Sukchar (West Bengal), and hence section 68 and rule 211 were applicable to the present case. When it was pointed out to him that in the present application before us there are passages which may mean that the vehicle, or the goods carried in it, were passing through West Bengal. Shri Chakraborty offered to furnish a supplementary affidavit which could clear the mis-conception. This was allowed, and a supplementary affidavit was affirmed on April 12, 2000, and filed. Thus there is no dispute between the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because he is not a dealer and his residence is at place outside Calcutta. In terms of this provision the applicant may obtain the way bill by making an application in the prescribed form to the Assistant Commissioner or Commercial Tax Officer, within whose jurisdiction his residence is situated. But the applicant-company is of Hyderabad and none of its directors resides in West Bengal. Therefore, there is no Assistant Commissioner or Commercial Tax Officer, assisting the Commissioner of Commercial Taxes, West Bengal, in carrying out the purposes of the 1994 Act, who has any jurisdiction in those places where the applicant-company or the residences of its directors are situated. That being so, Shri Chakraborty submits, the law does not specify any authority from whom and the manner in which the way bill could be obtained by the applicant. Since there is no legal way in which the applicant could obtain the way bill, he was not guilty of any breach of any legal provision when he failed to hand over to the transporter a way bill to accompany the consignment. There is thus, Shri Chakraborty submits, no ground on which penalty could be imposed on the applicant. He therefore, prays for s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est Bengal, such person, casual trader or dealer shall, before taking delivery of such consignment of goods except a consignment of goods of the nature and of the value referred to in sub-rule (2) of rule 210, present before the Commercial Tax Officer or Inspector of the check-post, if any, at such railway station, steamer station, port, airport or post office a way bill in form 42 in duplicate obtainable in the manner laid down in rule 215, rule 215A or rule 215B, as the case may be, and he shall also present the railway receipt, bill of lading, air consignment note or any document of like nature in respect of such consignment of goods for countersignature by such Commercial Tax Officer or Inspector." 9.. Shri Chakraborty, submits that in terms of these Rules a way bill can be presented only by a person, casual trader or dealer importing or bringing, "on his own account" any consignment of goods into West Bengal from any place outside West Bengal. Mr. Chakraborty emphasises the words "on his own account" and submits that neither the clearing agent, nor the transporter, nor the company in Sukchar to whose office goods were being taken, was importing goods into West Bengal on his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder this rule that the consignment, after crossing the check-post was accompanied by an endorsed way bill. Such way bill did not accompany the consignment when the vehicle was intercepted, and there was thus a breach of rule 212 of the 1995 Rules. In terms of sub-rule (8) of rule 212 the consignment was seized, and penalty was imposed under section 71 of the 1994 Act. The applicant admits that he failed to comply with the provision regarding the way bill, but this was not due to any lapse on his part. It arose out of a lacuna in law, for which he cannot be penalised. The law is such, relevant rules being 215, 215A and 215B that it failed to indicate the authority which was empowered to issue a way bill to a person, not being a dealer or casual trader, who had neither an office nor a residence in the State of West Bengal. We agree with the contention. We hold that when the consignment was taken through the sales tax check-post at Calcutta port, rule 211 was attracted, a way bill was required to be presented, it was not presented in the present case, for reasons explained above, but the applicant had not committed an offence for which he could have been penalised. We also hold t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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