Judgment:
1. In this application under Section 8 of the West Bengal Taxation Tribunal Act, 1987 the petitioner has challenged orders of seizure and penalty dated October 23, 2000 of respondent No. 2, Commercial Tax Officer, Durgapur Range, and the revisional orders dated February 20, 2001 and June 20, 2001 passed by respondent No. 3, Assistant Commissioner, Durgapur Range A and Deputy Commissioner, Durgapur Range, respectively affirming the order of the Commercial Tax Officer, as those orders are not sustainable in law and prayer as such for setting aside the same has been made.
1.1 The case of the petitioner is that the petitioner is a dealer registered under the West Bengal Sales Tax Act, 1994 and the Central Sales Tax Act, 1956 and carries on business of manufacturing mustard oil and also in the local purchase of bulk palmolin oil in tanker for making sale thereof in small tins of 15-16 kg. On October 21, 2000 the petitioner had been transporting 750 tins of palmolin oil by vehicle No. WB-23/2845 to Bankura for delivery to three different dealers (M/s.
Ganapati Rai Omprakash, M/s. Shyam Sundar Dutta and M/s. Anand Traders) there 250 tins to each party. When the vehicle reached Durgapur it was intercepted and brought to Durgapur Range Office for verification of documents lying with the driver who had with him supporting road challan and declaration under Rule 214B of the West Bengal Sales Tax Rules, 1995. But even then the goods were seized on October 23, 2000 before expiry of 48 hours on the flimsy ground that the supporting challan was made on petitioner's letterhead and supporting declarations contained no serial number. The driver duly got copy of the seizure receipt and also notice dated October 23, 2000 in form 44. The penalty proceeding was heard on that very date by respondent No. 2 who after making arbitrary valuation imposed a penalty of Rs. 76,500. During penalty proceeding, the petitioner No. 2 one of the partners of petitioner No. 1 was present with the driver and produced three invoices raised against the three recipients of disputed goods and also invoice dated October 11, 2000 received from M/s. M.K. Enterprise of Raniganj evidencing purchase of 9,940 kg. (1 tank) of RBD palmolin oil which would prove that there was no irregularity or illegality in the transportation of the Schedule IV tax-paid goods. The petitioner against the said orders went in revision before respondent No. 3, Assistant Commissioner who by order dated February 20, 2001 confirmed the order of respondent No. 2 without going through the document as well as the affidavits. The petitioner then preferred revision before respondent No. 4, Deputy Commissioner, Durgapur Range, against the order dated February 20, 2001. Without appreciating that the goods are subjected to single point tax and without appreciating that local purchase and sale thereof do not attract tax at all and without enquiry as to whether M.K. Enterprise sold the said disputed goods to the petitioner, dismissed the revision and affirmed the order of respondent Nos. 2 and 3. This led the petitioner to come up here praying the aforesaid relief.
2. The case of the respondent in the affidavit-in-opposition is A that the declaration cannot be legally valid unless all requisites are complied with and in this particular case, declaration number which is one of the basic requisites had been wanting. Moreover, the road challan had been on a private letterhead without requisite number and that was not on a serialised sheet of paper. Those are as such invalid and improper documents and accordingly seizure has been rightly made and penalty has been rightly imposed complying with the provisions of law. The story of production of documents before the Commercial Tax Officer by the petitioner as made is not true. Hence the orders passed having been passed according to law are not liable to be set aside.
3. The petitioner used affidavit-in-reply wherein the points raised in the application have been reiterated. It has been contended that lapses, if there be any, on the part of the petitioner could at best be construed as an irregularity but not an illegality for which penalty should not have been imposed.
5. Admittedly the vehicle along with the goods loaded on it was intercepted at 5:45 p.m. on October 21, 2000 and the seizure was made at about 11:05 a.m. on October 23, 2000 which is within a period of 48 hours of detention of the vehicle. It has been contended by Sri S.N.Bose, learned advocate for the petitioner, that the 48 hours time in this case has not been given to the petitioner to furnish particulars or documents and that as such provision of Section 70 of the West Bengal Sales Tax Act, 1994 has been violated. This has been contradicted by Sri J.K. Goswami, learned State Representative, who submits that seizure can be made any time within 48 hours if authority is so satisfied. As we go through the provision of Section 70 we find that the outer-limit of 48 hours only has been fixed from the time of detention. So the submission of learned Advocate for the petitioner in this respect has no force. The report before the seizure is made an annexure (page 9) to the affidavit-in-opposition and the detention order is at page 8 thereof. On a perusal of the report prior to the seizure, it appears that the Commercial Tax Officer, Durgapur Range, found that the alleged road challan of the petitioner bears no serial number and is on a private letterhead and the required declaration form that was filled up also contained no serial number. As those were considered to be neither valid declaration nor valid road challan, seizure was made as the transportation of the goods thereby violated the provisions of Section 68 of the West Bengal Sales Tax Act, 1994 read with Rule 214B of the West Bengal Sales Tax Rules, 1995. It also appears from the said report that the entire content of the report had been explained to the driver in his own vernacular by the Commercial Tax Officer. Admittedly this being a case of transport of consignment of goods from one place in West Bengal to another place in West Bengal, i.e., from Raniganj to Purulia, Rule 214B is the rule to be applied.
This rule mandates that the driver is to carry a declaration in duplicate as per the declaration appended to this rule and the same has to be filled in and signed by the person consigning for making over to the driver to enable the driver to present the same before the concerned authority who is authorised to intercept, detain and search on the way to the destination. What are the other documents to be carried by the driver is given in sub-rule (2) of Rule 214B. Sub-rule (3) of the said rule enjoins that a driver is to present on demand before such authority the declaration and any of the document, referred earlier, for verification. It may be mentioned that the declaration and the road challan had been accordingly produced by the driver to the Commercial Tax Officer, Durgapur Range. As the declaration fell short of a declaration as appended to the rule, the Commercial Tax Officer could not take it as a valid declaration. There was legal lacuna in the declaration as there was no serial number as to be found in the appended declaration in the top right hand corner. Moreover, we find that the column number 8 which refers to challan number, date, etc., has been kept blank. Moreover, the road challan number was on the petitioner's private pad and it also bore no number. So the Commercial Tax Officer did not take cognizance of those documents. It is vehemently argued by Sri J.K. Goswami learned State Representative that such omission in declaration makes it no declaration at all. If there is no number, if column number 8 is left blank as to be found here it will be free for all. If the consignment had not been intercepted, the transaction would not have been brought in the account book. It is also contended that road challan is some sort of evidence. In no case it can be equated with one's private letterhead. Concept of challan and concept of letterhead do not conform to each other. So he submits that what the Commercial Tax Officer did in the situation as above is what is prescribed by the said rule and Section 68 of the Act. Against such submission of learned State Representative, Sri S.N. Bose refers us to the proviso clause to sub-rule (3) of Rule 214B. His submission is that on verification everything was found all right by the Commercial Tax Officer except mainly the declaration over a negligible portion of it.
As the challan was there showing despatch of goods from one place in West Bengal to another place in West Bengal, the authority as per proviso clause on perusal of document should have been satisfied and should have dispensed with the requirement of declaration and could let the vehicle move after countersigning with official seal on the documents presented to it. It is contended by the learned State Representative that the benefit of the proviso clause cannot be availed of by the petitioner as of right particularly when the petitioner has furnished defective and doubtful documents not warranted by provisions of the rule. There could be no satisfaction on the part of the authority at the spot for the reasons above to enable it to dispense with such requirement.
6. We find that production of declaration appended to the rule duly filled in, is the normal rule. Along with the declaration, any of the documents like consignment note, delivery note, invoice, road challan has also got to be filed. Failure to do so will be a contravention of provision of Section 68. In this case, the petitioner, as we find, filed declaration without serial number and without filling up serial number 8 thereof as there was no challan number on the private letterpad of petitioner. So palpably as we scrutinise, we find that the declaration submitted is no declaration as per law and the challan submitted is not a challan but something written on a letterpad and hence naturally there has been violation of the Rule 214B and accordingly also a contravention of Section 68 of the Act leading to seizure eventually under Section 70 of the Act.
7. Sri S.N. Bose submits that there is no prescribed challan form and that as such it cannot be said that the road challan filed cannot be accepted for want of serial number. He also submits that in the impugned order dated October 23, 2000 of the Commercial Tax Officer disposing of the penalty proceeding (annexure "C") it has been mentioned that the driver Sharafat Hossain could not establish that 750 tons of RBD palmolin oil were purchased within the State of West Bengal (since it was in an unassorted form). In view of specific mention of unassorted form as the reason thereof, it is submitted that such ground as given does not find mention anywhere in the Sales Tax Act. As matters extraneous to the relevant Act and the Rules have been given as reason for the decision he has taken, learned Advocate submits, that the same is not tenable. He refers also to a decision reported in [1986] 63 STC 354 (Shri Shiv Kumar Bajaj v. Additional Commissioner of Commercial Taxes) Calcutta High Court to substantiate his submission that the statutory authority is to adhere to the requirement of the statute and no extraneous matter ought to have been taken note of in interpreting a taxing statute. The other case mentioned by him is the one reported in [1988] 69 STC 261 (All.) (Apex Traders v. Commissioner of Sales Tax, U.P., Lucknow) in order to impress that minor overwritings, cuttings or omission should not be taken note of. But we have already noted that the requirements of the provisions of the Act and the Rules have not been fulfilled on vital matters and not on minor or unimportant aspect.
8. It has been next submitted that not only the driver of the petitioner, but also petitioner No. 2-one of the partners of petitioner No. 1 was physically present before respondent No. 2 in the hearing of penalty matter on October 23, 2000 which hearing admittedly was held promptly as per the request of the driver. The presence of the partner there on that date has not been noted and the petitioner wants to say that documents have been filed by him but had not been accepted by respondent No. 2. An affidavit dated October 31, 2000 sworn by Mr.
Kesari-one of the partners of petitioner No. 1 has been furnished. He swears his presence on October 23, 2000 before respondent No. 2 with some documents. But the order sheet does not say so. The order sheet only speaks of the presence of the driver without any other document than the documents already furnished. We are unable to put reliance on the affidavit of the partner swearing his presence with documents on that date. There is nothing to show that the concerned officer respondent No. 2 was inimically disposed of towards that partner.
Moreover, in the first revisional order there is mention that documents were not produced before the respondent No. 2, Commercial Tax Officer as stated in the affidavit. It appears that some documents were shown subsequently when Assistant Commissioner passed his order in revision on January 20, 2000 but it appears he did not go through the documents though we find that in the second revision Deputy Commissioner when passed his order dated June 20, 2001 perused two purchase documents shown but it appeared to him that the said purchase was for 9.940 metric ton whereas the disputed palmolin oil weighed 14.5 metric ton.
So no connection between the said purchase and the disputed goods seized would be established before him. Mere filing of an affidavit subsequently without production of document before the Commercial Tax Officer at the time of hearing of the penalty matter cannot help the petitioner in any way. The case reported in [2001] 124 STC 124 (Vasu and Company v. State of Kerala) Kerala High Court to which our attention was drawn by learned Advocate for the petitioner concerning the affidavit evidence cannot in the fact-situation of this case come to any help of the petitioner. That was a case facts of which show that some reasons for the delay in filing appeals were given and the main reason was the negligence of the advocate. The Tribunal did not condone the delay for want of any affidavit by that advocate. But the honourable High Court of Kerala taking judicial notice of the difficulty in getting such an affidavit from the concerned advocate, placed reliance on the petitioner's affidavit as document of evidence.
But here the petitioner is at fault. The petitioner was under a legal obligation to produce all the valid mandated documents, it had, before the authority, respondent No. 2, during the penalty proceeding-to avoid imposition of penalty, if any. The petitioner had chosen not to do it and suffered the penalty as a result. The petitioner also paid the amount of penalty and got release of the goods. As we peruse the penalty order, we find the rate that has been charged for the goods is the rate mentioned in the petitioner's own document and therefore 30 per cent of the total value thus arrived at by way of penalty is quite in conformity with law. Therefore we do not find any ground for which the seizure and the penalty can be assailed. Both the points are therefore decided against the petitioner.
The application therefore fails and is liable to be dismissed and is dismissed.