TMI Blog2006 (1) TMI 562X X X X Extracts X X X X X X X X Extracts X X X X ..... the entire stock of goods transferred from Mumbai to Kolkata and the two different stock transfer notes being Nos. 18 and 21 both dated January 25, 2002 pertaining to the consignment of 20 and 90 boxes were issued respectively. Both the two stock transfer notes accompanied the consignment which was transported from Mumbai to Kolkata through air. One of the employees of the petitioner, Sri Ashoke Das, a peon, was sent to the airport check-post for releasing 20 boxes and accordingly a way-bill was filled up in a statutory form in compliance with West Bengal Sales Tax Rules, 1995 for releasing the goods from Airport check-post authority. At that time the respondent No. 1 asked the way-bill in respect of the second stock transfer note for 90 boxes. But Sri Ashoke Das, the petitioner's representative, could not produce the way-bill about the second stock transfer note. As such those goods were not released and were kept in the custody of the airport authority and no claim was made for releasing the goods covered by the second stock transfer note as waybill was not produced by the representative of the petitioner. The respondent, on the other hand, immediately seized the goods and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at it was a case of stock transfer. As such the right to property over the goods was not questioned. The Tribunal held that even though the goods were not seized from the physical possession of the petitioner but constructive possession of the petitioner was there over the goods when seizure was made as such there was violation of rule 211 of the West Bengal Sales Tax Rules, 1995 and accordingly the Tribunal held that seizure was made in accordance with law. On the question of penalty the Tribunal found that there was no evidence on record to show that there was any attempt made by the petitioners to take delivery of the goods or get the goods released by any unfair means or under any false pretext. As such, the Tribunal found that there might have been a bona fide mistake or a communication gap on the part of the petitioners but since there was no mens rea the penalty could not have been imposed. As such the Tribunal upheld the seizure but set aside the order of penalty and remanded the matter to the Commercial Tax Officer to hear the matter on the question of penalty and directed the disposal of the penalty proceeding within a certain time frame. Thereafter a notice was issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tyl injection and it was alleged that same was not reflected in the way-bill and according to the respondent-authorities the same was a false declaration furnished by the petitioner. In fact the case of the petitioner is that there was only one way-bill for 20 boxes and the other way-bill had not reached the Kolkata office. The stock transfer note specifically mentioned two consignments separately. Therefore, the authority should not have proceeded on the basis that there was any false declaration by the petitioner. On these facts one consignment of 20 boxes was released and the other consignment was seized in exercise of the power under section 70 of the West Bengal Sales Tax Act from the alleged possession and custody of Sri Ashoke Das. It cannot be disputed that Sri Ashoke Das had no custody over the goods. Therefore this factual assumption is obviously wrong. It is the consistent case of the petitioner that no attempt was made by Sri Ashoke Das to get the consignment of 90 boxes released and that stand of the petitioner could not be disputed. Sri Ashoke Das only wanted to have the consignment of 20 boxes released and for which there was a way-bill. In the order of the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssession, the authorities are talking on the basis of inference. In matters relating to seizure which may lead to imposition of penalty, there is no warrant for proceeding on the basis of inference unless it is authorised by law. Here there is no legal basis for drawing such inference. As such the very basis of seizure is unsustainable. Under rule 211 it is made clear that when any consignment of goods is imported or brought into West Bengal by a dealer from any place outside West Bengal and such consignment of goods reaches a particular station either by a railway station, steamer station or a port or airport or post office in West Bengal in that case such dealer shall, before taking delivery of such consignment of goods, present before the Commercial Officer or Inspector at the check-post a way-bill in form No. 42. In the instant case there is no violation of rule 211 inasmuch as the consignment of 90 boxes has not been taken delivery of by the petitioner on January 29, 2002. It may be noted in this connection that the goods arrived at the checkpost at 2.30 p.m. on January 29, 2002. From the seizure receipt it appears that the authorities allegedly intercepted the goods at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter then the authority shall first detain the vehicle carrying such goods for a period not exceeding 48 hours and if the person bringing, importing or receiving such goods fails to furnish such particulars as have been prescribed under section 68, the authority shall seize such goods together with any container or materials for the packaging of such goods. The proviso to section 70 makes it clear that in granting the period of 48 hours, sunday or a public holiday declared under the Negotiable Instruments Act shall be excluded. Therefore, the provision of giving 48 hours time to produce necessary document is a condition precedent to a valid seizure of such goods. The fact that such a condition is a mandatory one is made clear from the proviso which says that the period of 48 hours must be very strictly construed and from such period shall be excluded sunday or any other holiday declared under the Negotiable Instruments Act. In the instant case, the seizure has taken place within virtually one hour and ten minutes of the arrival of the goods and the requirement of giving 48 hours to produce the document, which is also a statutory requirement, has been totally ignored. Apart from tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported in [1973] 3 SCC 83, the expression "reasons to believe" occurring in section 464 of the Code of Criminal Procedure, 1898 came up for consideration and the learned Judges held that the words reasons to believe mean a belief which a reasonable person would entertain on the facts before him. Similar opinion has been expressed in Dr. Partap Singh v. Director of Enforcement, Foreign Exchange Regulation Act reported in AIR 1985 SC 989, in the context of the provisions of search and seizure under the Foreign Exchange Regulation Act. The expression "reasons to believe" came up for interpretation. The Supreme Court held the expression "reasons to believe" is not synonymous with the subjective satisfaction of the officer and it was held that the belief must be held in good faith and should not be a mere pretence. In Joti Parshad v. State of Haryana reported in AIR 1993 SC 1167, the words reasons to believe came up for consideration in the context of section 26 of the Indian Penal Code. Referring to section 26 of the Indian Penal Code, the learned Judges held that formation of reasons to believe is not the same thing as suspicion or doubt and mere seeing cannot be equated to belief. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there should not be any seizure or payment of penalty. The facts here are almost identical and as such the penalty proceeding in this case cannot be sustained. Attention of this court was also drawn to another decision of the division Bench of this court in the case of Shree Azad Transport Co. Pvt. Ltd. v. Commercial Tax Officer, Duburdih Check-post, Burdwan reported in [2001] 123 STC 13. The learned Judges held that the provisions of the said Act and Rules must be harmoniously construed and after reading them harmoniously the court came to the conclusion that upon interception of the goods which enter the West Bengal Zone in contravention of the provisions of section 68, a detention of the goods is required to be made for a period not exceeding of 48 hours. Within that period an opportunity is to be granted to the person bringing, importing or receiving such goods for producing the necessary documents 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. In the instant case the aforesaid procedure was not followed in respect of the second consignment of 90 boxes. Therefore, the statutory mandate not havi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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