TMI Blog1997 (8) TMI 501X X X X Extracts X X X X X X X X Extracts X X X X ..... Bengal after purchase from local manufacturers. On March 18, 1992 the applicant received intimation about proposed despatch of eight boxes and sixteen loose pieces of such spare parts. The necessary challan was prepared on August 20, 1992 and the transporter prepared consignment note on August 28, 1992 and the documents were despatched by its (the applicant's) Delhi office by post; but due to postal delay the same were received by the applicant's Calcutta office only on September 8, 1992. The Delhi office instructed the transporter that the truck carrying the consignment should not enter Duburdih check-post unless the permit required under law was produced by the Calcutta office through its clearing agent. The applicant after receiving t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dealer, had no intention to evade tax, the order imposing penalty should be quashed and that only because of the postal delay, over which the applicant had no control, the permit could not be obtained before the truck had reached the check-post. The applicant has prayed for quashing the impugned orders of the respondents Nos. 1, 2 and 3, for further reducing the penalty and for an order for refund of Rs. 1,35,000, the amount by which the penalty has already been reduced by the respondent No. 3. 3.. The respondents have filed a combined affidavit-in-opposition disputing all material averments of the applicant made in the application. The main contention of the respondents is that the excavator parts, a notified goods, having been imported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The undisputed positions are that the spare parts of excavator are notified goods, the vehicle carrying consignment of spare parts in question was intercepted and detained on September 4, 1992 and the goods were seized on September 6, 1992 and that either at the time of interception or at the time of the seizure there was no permit for the importation of the consignment into West Bengal. Therefore, the validity of the seizure of the excavator spare parts involved is beyond question. Shri S.K. Chakraborty, learned Advocate for the applicant also concedes that the validity of the seizure is not an issue in this case. What we are now probing into is whether in the circumstances, as canvassed by the applicant, the order imposing penalty can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere are several extenuating circumstances which ought to have been taken into consideration before imposing penalty and fixing its quantum. He submits that the applicant is a law abiding dealer as would appear from books of accounts which are available for scrutiny. But maintenance of seemingly honest books of accounts meant for official scrutiny is no sure test for a clean business affair of a dealer, because even a dishonest dealer would not leave in his books of accounts, meant for official scrutiny, a tell-tale evidence (unless the same creeps in inadvertently), as would expose his illegitimate business affairs. 6.. Shri Chakraborty submits that there was no mala fides in the action of the applicant nor was there any attempt to evade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s involved and where the sales tax permit is a statutory pre-condition for importation, it would have been natural for any diligent and honest importer to obtain the copies of the documents through modern communication systems like speed post or by courier service. No dealer acting bona fide can afford to be so careless as to remain content in awaiting the documents by ordinary post and expose itself to the risk of legal consequences for failure to obtain statutory permit timely. We find much substance in the contention of Shri Goswami. 9.. Again, in case of uncertainty of obtaining the particulars of the consignment for the purpose of a regular permit the applicant could have applied for a special permit, i.e., blank permit in advance. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y applicant to pass the same as "machinery parts". This fact clearly makes the story of bona fide act unworthy of credence. 11.. From the circumstances discussed above we are unable to hold that the applicant acted with diligence or its conduct in transporting the excavator parts was above board. Misled by the wrong description of the impugned goods, had the check-post authorities allowed the consignment to pass through the check-post, the entire consignment or excavator spare parts might have gone unrecorded in the records of the taxing authority and would have eventually dodged the taxing net. 12.. It is submitted by Shri Chakraborty that on the earlier occasions the applicant imported excavator parts with appropriate sales tax permit ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
