TMI Blog2000 (12) TMI 878X X X X Extracts X X X X X X X X Extracts X X X X ..... s of rule 212(10), the goods were seized on September 13, 2000. A reasoned order was passed by the competent authority on September 21, 2000. Validity of the said order as also the seizure was questioned by the petitioner herein before the learned Tribunal being RN 259 of 2000 which has been dismissed by reason of the impugned order dated September 9, 2000 by the learned Tribunal holding as under: "On behalf of the State, learned lawyer Mr. Goswami submitted that since the goods were being transported without any way-bill there is no other alternative but to seize those goods for violation of the provisions of the Act and subsequent proceeding thereby cannot be vitiated for the illegal activities done by the petitioners. The full amount of penalty should be secured since the petitioner is a transporter and not a registered dealer. Consider the submissions of both the sides and we are of the opinion that the proceedings adopted by the seizing authority is purely in accordance with law and the amount of penalty should be covered by a reasonable sum of money and should be in cash. The petitioner shall furnish a cash security of Rs. 1,30,000 and on furnishing such security the seiz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) of section 3 to assist the Commissioner, has reason to believe that any goods are being transported in contravention of the provisions of section 68, he shall first detain the vehicle carrying such goods for a period not exceeding forty-eight hours and, if the person bringing, importing or receiving such goods fails to furnish such particulars in such form as may be prescribed under section 68, shall thereafter seize such goods together with any container or other materials for the packing of such goods. Rule 212(3). On the request of the driver or person in-charge of the vehicle made under sub-rule (2), the Commercial Tax Officer or Inspector of the check-post shall allow time, not exceeding forty-eight hours from the entry of such vehicle, to enable him, to present the way-bill in form 42 before the expiry of the time allowed by him, and the vehicle with such consignment of goods shall, subject to the provisions of sub-rule (6), remain detained till the time of presentation of such way-bill or the expiry of the time allowed, whichever is earlier. ........................................... (6) If any person, casual trader or dealer or the driver or person in-charge of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as may be prescribed under section 68 of the Act and in case of his failure to do so, the goods may be seized together with any container or other materials or the packing thereof. 8.. Sub-rule (3) of rule 212 also prescribes 48 hours as the time to be allowed to the transporter to produce way-bill in form 42. It is true that sub-rule (6) of rule 212 provided for seizure of such goods in the event the driver or the person in-charge of the road vehicle fails to present any way-bill in sub-rule (i) of sub-rule (3) thereof. Sub-rules (9) and (10), however, show that goods are only seized in the presence of the vehicle or other person in-charge thereof so as to enable the authorities concerned to verify and consider the documents and to arrive at a conclusion as to whether seizure under the facts and circumstances is necessary or not. 9.. In the instant case, interception had been made outside the check-post but the vehicle had been brought to the check-post for verification of the documents. 10.. There are, thus, three stages for effecting seizure, namely, interception, detention and ultimate seizure. 11.. Seizure of the vehicle or the goods loaded therein is not automatic. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied with after the prescribed time [see Smith v. Jones (1830) 109 ER 809 and the other decisions cited in Maxwell].' In America also the law seems to be the same. Thus in Sutherland, Statutory Construction, 3rd Edition, Volume 3, at page 102, the law is stated as follows: 'A statute specifying a time within which a public officer is to perform an official act regarding the rights and duties of others is directory unless the nature of the act to be performed, or the phraseology of the statute, is such that the designation of time must be considered a limitation of the power of the officer.' At page 107 it is pointed out that a statutory direction to private individuals should generally be considered as mandatory and that the rule is just the opposite to that which obtains with respect to public officers. Again at page 109, it is pointed out that often the question as to whether a mandatory or directory construction should be given to a statutory provision may be determined by an expression in the statute itself of the result that shall follow non-compliance with the provision. At page 111 it is stated as follows: 'As a corollary of the rule outlined above, the fact that no c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtain provisions therein which would be beneficial to the assessee. The time of 48 hours granted to the transporter for production of the documents before the seizure is effected is one of such provisions. We may place on record that earlier only 24 hours time could be granted but only by reason of amendment the said period has been extended to further 24 hours. 18.. The commercial taxation authorities are public functionaries. The provision of seizure is an enabling one. It is true that before effecting seizure, illegality whereof may amount to deprivation of property, condition precedents therefor are to be strictly complied with. The question which arises for consideration in this application is as to whether the petitioner can take advantage of his own wrong. He admittedly had not been carrying the way-bill. He was granted time to produce the way-bill. He did not report for a long time and probably fled away from the scene. He did not make any complaint about the illegal seizure immediately upon expiry of 48 hours from the date of detention. He suffered a speaking order passed as far back as on September 21, 2000. 19.. In this situation, not only the question as to whet ..... X X X X Extracts X X X X X X X X Extracts X X X X
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