9911796707
TMI Blog2011 (7) TMI 1042X X X X Extracts X X X X X X X X Extracts X X X X ..... May 5, 2008 directed release of the seized goods to the custody of the petitioner against cash security of Rs. 50,000 giving liberty to repair without melting the same. On April 15, 2008 at 18 hours the petitioner's representative produced air way-bill for the imported "gold" before the A.S.T.O., N.S.C. Bose airport check-post. The air way-bill did not indicate whether the contents were gold bar or gold ornaments. The petitioner's representative, on being asked for, produced the said packets. On physical verification 5000 gm. gold bar and 1313.360 gm. gold ornaments were found inside the packets. The carrier could not produce the way-bill and invoice for the gold ornaments and as such the same were seized on April 18, 2008. In pendency of this application, the penalty proceeding was initiated and the penalty was awarded valuing the gold ornaments at Rs. 16,88,981 for violation of the provision of section 73 of the West Bengal Value Added Tax Act, 2003 for the reasons that (i) there were misdeclaration of the contents of the consignment and (ii) non-production of way-bill and invoice for the gold ornaments. This factual position is not denied by the petitioner. The petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... except a consignment of goods of the nature and of the value referred to in sub-rule (2) of rule 99, present before the Sales Tax Officer or Assistant Sales Tax Officer of the check-post, if any, at such railway station, steamer station, port, airport (or customs station a way-bill) in form No. 50 in duplicate obtainable in the manner laid down in rule 110 or rule 111 or rule 112, 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 counter-signature by such Sales Tax Officer or Assistant Sales Tax Officer." So as per the provision of sub-rule (1) of rule 100 way-bill and other documents are necessary to be presented before the Sales Tax Officer or the Assistant Sales Tax Officer of the check-post. Admittedly those were not presented. The petitioner asserted that those were presented within the time as prescribed in section 76 but those were refused. The contesting respondent denied this. No evidence were placed before us to support this fact asserted by the petitioner. So the fact of presentation of the way-bill and other documents within the period as pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovision of law. We accept the view of the learned State Representative Mr. Banerjee that in view of the latest decisions of the honourable Supreme Court absence of intention is not relevant for imposition of penalty which is a civil liability. In our case the contravention of the provision of section 73 imposes civil liability under section 77 of the Act and hence intention is not relevant for imposition of penalty. But imposition of penalty under section 77(1) of the Act is not automatic. It gives the authority discretion for imposition of penalty and to assess the quantum thereof. So the question is whether the contravention of provision of law is deliberate is relevant for applying the said discretion. In our case there is no record as to whether the gold ornaments bore any mark. The copy of issue voucher dated May 29, 2008 annexed with the supplementary affidavit filed by the petitioner indicates sending of new ornaments after repair and polish wash in exact weight without changing the weight. On repair usually the ornaments either gain or lose the weight. On polishing the ornaments usually lose the weight. No explanation offered as to why these ornaments on being repaired and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seizure and imposition of penalty and as indicated earlier, the learned Tribunal by the order impugned herein has affirmed the order of seizure and imposition of penalty. Being dissatisfied, the dealer has come up with the present writ application. The only question that falls for determination in this application under article 226 of the Constitution of India is whether the writ petitioner is guilty of violation of sub-rule (1) of rule 100 of the West Bengal Value Added Tax Rules, 2005, which is the reason for seizure of the gold ornaments and imposition of penalty. In order to appreciate the aforesaid question, it will be appropriate to refer to the provision contained in rule 99 of the West Bengal Value Added Tax Rules, 2005, which is quoted below: "99. Restriction on transport of my consignment of goods despatched from any place outside West Bengal.-(1) No dealer, casual dealer, or any other person shall, except in the manner are prescribed in rule laid down in this Part or Part II of this Chapter, transport any consignment of goods except the consignment of goods of the nature or value specified in sub-rule (2) despatched from any place outside West Bengal from any railway ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dded Tax Act, 2003 and the information and the statement given herein are true to the best of my/our knowledge. I/We also undertake immediately to pay tax in the event of any sale of such goods in West Bengal. Date: Name of the declarant............. Signature of the declarant................. Place: Status of the declarant...................... Counter-signature by Customs Authority with seal." On a plain reading of the aforesaid rule, it indicates that sub-rule (2) thereof specifically bars the application of the provisions of rules 100, 101 and 102 in case of the consignment of goods, indicated under sub-rule (a) to sub-rule (e). According to sub-rule (c)(ii) where such consignment of goods is of gold, or precious stones including pearls (real, artificial or cultured), rule 100 will have no application. All the authorities below including the learned Tribunal were of the view that the word "gold" should mean the gold bar and not the gold ornaments and for that reason, the authorities below rightly released the gold bar, but seized the gold ornaments and imposed penalty. After hearing the learned counsel appearing for the parties and after going through ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
