TMI Blog2001 (7) TMI 1315X X X X Extracts X X X X X X X X Extracts X X X X ..... were endorsed by the sellers in favour of M/s. J.R. Trading Company and Naresh Engineering and Hardware Stores, Mumbai, so that the consignment on reaching Nanded could be delivered without any inconvenience to the said parties in whose favour the Bills and Invoices were endorsed. According to the petitioner the goods were transported under the instruction of M/s. Prashant Enterprise and the petitioner acted as the agent of the said consignee. 3. When the vehicle had reached Kharagpur on 13th July, 1999, it was intercepted on National Highway No. 6 near Kharagpur by the Commercial Tax Officer, Kharagpur Range, who asked the driver of the vehicle to produce the way bills and documents of title in respect of the consignment of goods loaded on the vehicle. The driver of the vehicle was, however, unable to produce the said documents and produced the lorry challan No. 4/093, which contained substantial details of the goods, and delivery challans wherein M/s. J.R. Trading Co. and M/s. Naresh Engineering and Hardware Co. of Narayan Dharu Street. Bombay, were shown as the despatchers and M/s. Jaiwant Rao Patil S.S.K. Ltd. of Nanded, as the consignee. The driver tried to explain t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from West Bengal and that the driver had, therefore, contravened Rule 214C of the West Bengal Sales Tax Rules, 1995, as also the provisions of sections 68 and 73 of the West Bengal Sales Tax Act 1994. Upon such finding, the said respondent rejected the petitioner's Revision petition and by his order dated 19th July, 1999, held that the seizure dated 15th July, 1999, was valid and justified. An appeal preferred against the order of the Assistant Commissioner of Commercial Taxes, Kharagpur Range, was dismissed by the Deputy Commissioner of Commercial Taxes Kharagpur Range, by his order dated 20th July, 1999, confirming the order passed by the Assistant Commissioner of Commercial Taxes and upholding the seizure made by the Commercial Tax Officer. 9. Subsequently, on 16th August, 1999, the Commercial Tax Officer imposed a penalty pursuant to the show cause notice and issued a notice demanding payment of such penalty quantified at ₹ 1,17,485/-. According to the petitioner, he had no other alternative but to have the goods released on payment of such penalty and the goods were thereafter transported to Nanded in Maharashtra and Central Sales Tax at the rate of 4% was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal had taken proper note of the documents produced on behalf of the petitioner after the goods had been seized, namely, the Bills and Invoices issued by the manufacturers of the seized goods showing realisation of Central Sales Tax at the rate of 4% on account of sale of the said goods, Mr. Bhattacharjee urged that all the said forums below merely acted on the basis of the documents produced by the driver of the vehicle at the time of seizure in arriving at the finding that the said goods were being carried under fake and fabricated documents. Referring to the provisions of Section 68 of the aforesaid Act, Mr. Bhattacharjee submitted that the same dealt with the restriction of movement of goods in order to ensure that there is no evasion of tax. He also referred to section 73 which provides for measures to prevent evasion of tax on sales within West Bengal. Mr. Bhattacharjee submitted that the provisions of section 73 required a transporter carrying goods from any place in West Bengal outside West Bengal, to carry in addition to a document of title to the goods carried by him, where carriage is caused by sale of such goods, two copies of the bill or cash memorandum issued by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apart from the lorry challan where all the details of the consignment of goods were indicated, the other documents which had been produced by the driver of the vehicle was for the purpose of facilitating delivery of the goods once the vehicle reached Mumbai. All the forums below mis-interpretated the said documents as having been fabricated in respect of the goods being carried in the vehicle in question. Mr. Bhattacharjee urged that the said documents could not be a ground for the forums below to come to a conclusion that the petitioner had made an attempt to evade payment of Sales Tax under the West Bengal Sales Tax Act, 1994, and could not have been the basis for imposition of penalty as has been done in the instant case. 19. In support of his submissions Mr. Bhattacharjee firstly referred to and relied on a decision of the Hon'ble Supreme Court in the case of the Check Post Officer, Coimbatore and Ors. v. K.P. Abdulla Brothers, reported in XXVII (1971) Sales Tax Cases, Page 1, wherein the power to impose Sales Tax under the Madras General Sales Tax Act, 1959 was under consideration. In the said decision reference was made to Entry 54 of List II of the 7th Schedul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aforesaid Rules were produced on behalf of the petitioner. 22. Mr. Bhattacharjee lastly referred to a Bench decision of the Delhi High Court in the case of Calcom Electronics Ltd., v. Sales Tax Officer and Ors., reported in 121 (2001) Sales Tax Cases, Page 600, wherein it was held that the delay of 4 days in payment of tax was not sufficient for the purpose of imposition of penalty and that such payment was not justified. 23. Mr. Bhattacharjee submitted that it was settled law that in a fiscal statute where two views were possible, the one beneficial to the assessee was to be adopted. 24. Mr. Bhattacharjee further submitted that the most important aspect of the matter, as to whether the petitioner had any intention to evade payment of Sales Tax had hardly been gone into by any of the forums below or even by the learned Tribunal and the orders were passed mechanically on extraneous considerations. 25. Mr. Bhattacharjee submitted that the imposition of penalty was unwarranted in the facts of the case and the order imposing such penalty was liable to be quashed with a direction upon the concerned respondents to return the amount of penalty paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommercial Tax Officer was justified, but the question is whether penalty could have been imposed merely on account of such seizure. Whether penalty could be imposed depended on the facts and circumstances of the case and proper satisfaction being arrived at by the authorities that the petitioner had intended to evade payment of tax, Paradoxically, while the Commercial Tax Officer and the revisional forums relied heavily on the delivery challans produced by the driver of the vehicle in imposing penalty and confirming the same, the learned Tribunal, while choosing not to interfere with the imposition of penalty observed that the said delivery challans were extraneous and irrelevant to the carriage or transportation of goods from West Bengal to a place outside the State. 32. While considering the scope of Rule 214C of the West Bengal Sales Tax Rules, 1995, the learned Tribunal once again observed that the delivery challans produce by the driver of the vehicle at the time of detention did not relate to the transportation of the goods from West Bengal to Nanded or any other place outside West Bengal, but to certain other situations. On its said observations the learned Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposed is within the discretion of the authority, but such discretion is to be exercised judicially and on a consideration of all the relevant circumstances and penalty should not be imposed merely because it was lawful to do so. 36. The learned Tribunal unfortunately has neither considered the relevance and/or evidentiary value of the said documents nor has it come to a finding that the petitioner had evaded payment of tax or had intended to do so. We are, therefore, unable to sustain the judgment and order of the Tribunal impugned in this writ petition. We, therefore, set aside the judgment of the learned Tribunal and remand the matter back to the learned Tribunal to consider the said documents in the light of Rule 214C of the Rules and to arrive at a finding as to whether the petitioner had evaded payment of the tax or had intended to do so and to pass fresh orders on the basis of such finding. The writ petition is disposed of with the aforesaid directions. There will be no order as to costs. If an urgent xerox certified copy of this order is applied for, let it be supplied to the applicant expeditiously, subject to compliance with all the required f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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