TMI Blog2008 (8) TMI 872X X X X Extracts X X X X X X X X Extracts X X X X ..... o. HR-55E/0346. On November 18, 2007 the goods vehicle entered into West Bengal, crossed the entry point Dalkhola check-post and reached Phansidewa check-post where the driver produced the documents relating to the consignment, i.e., consignment note No. 36737 dated November 11, 2007 and despatch advice No. 0958081636 except way-bill. The check-post authority detained the vehicle, demanded production of way-bill showing endorsement of the entry point Dalkhola check-post but nothing could be produced before seizure of the goods on November 20, 2007 for contravention of the provisions of the West Bengal Value Added Tax (WBVAT) Act, 2003 and issued notice under form No. 60 inviting objection against imposition of penalty in pursuant whereof pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lyover and also failed to contract the agent but petitioner No. 2 produced the way-bill before respondent No. 1 and hence non-consideration of the same has vitiated the orders. It is further argued for the petitioner that the driver voluntarily produced all other documents of the consignment except the way-bill and explained the circumstances under which the way-bill could not be produced and subsequently petitioner No. 2 appeared and produced the way-bill but without taking those into account the penalty proceeding was concluded which is bad in law and hence the order of penalty be set aside. It is also argued that at the stage of revision though respondent No. 2 has considered the ground of non-production of the documents at Dalkhola c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocate the said checkpost on the pretext of road and flyover construction cannot stand the test of reasonable belief and hence the question of no consideration of the document and/or imposition of penalty cannot also legally be raised. It is also the submission for the Revenue that it is settled by the honourable Supreme Court that mens rea is not necessary to prove for imposition of penalty and hence the order of penalty dated December 1, 2007 and/or confirmation of the order with reducing the amount in revisional order dated December 5, 2007 do not suffer from any material irregularity or illegality to set aside the same and hence learned State Representative pressed for dismissal of the application with costs. Undisputedly, rather admi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts. It is also not the case on record that the road vehicle transporting the consigned goods entered into West Bengal and reached Phansidewa check-post through any place other than the said Dalkhola check-post being diverted for any reason beyond his control to justify the nonproduction for endorsement of the way-bill at Dalkhola to come under the provision under rule 104 of the VAT Rules but admittedly the driver passed over the Dalkhola check-post and, therefore, presumption of contravention of the rule 103 of the VAT Rules is strongly against the driver to justify the seizure than that of acceptance of the explanation of failure to locate the said check-post due to construction of Golden Quadrilateral Highway and flyover there and to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the application of mind of the concerned authority to form an independent belief or satisfaction that the contravention of the provisions of the Act and the Rules behind the seizure was motivated to evade tax or it creates a possibility of evasion of due tax to justify penalty. It is seen before that transportation of the goods was occasioned not on sale but on stock transfer and hence only the production of way-bill at the entry point check-post for endorsement was the legal requirement for valid transportation of the goods for future account and for that it was not the legally bounden duty of the driver to obtain the way-bill before causing movement of the goods from Goa and even if the goods vehicle was intercepted on the way before rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the stage of penalty proceedings to negate any intention of evasion of tax but that was not considered in that light. The decision by this Tribunal in the Case No. RN179 of 2007 also appears not aptly applicable in this case simply because in the said case the railway consignment receipt was not produced before the authority for endorsement before taking delivery of the goods from the railway siding as it was required by law and that's too the goods were also disposed of before production of the document for endorsement and for that it was not possible for the Revenue to verify the goods transported with contents of the related documents. But here in this case there was no such occasion to impede the Department to verify the consigned g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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