Judgment:
1. In this application under Section 8 of the West Bengal Taxation Tribunal Act, 1987 the petitioner challenges the seizure dated September 28, 2002 of rice bran oil and also the order dated September 29, 2002 of penalty by Commercial Tax Officer (CTO), Duburdih check-post (respondent No. 1) and the revisional order dated October 9, 2002 passed by the Assistant Commissioner (A.C.), Commercial Taxes, Asansol Circle (respondent No. 2) and the second revisional order dated January 6, 2003 by the Deputy Commissioner (D.C.), Commercial Taxes, (respondent No. 3) affirming the seizure and modifying the penalty amount from Rs. 1,75,000 to Rs. 1,05,705. Prayer has also been made for refund of the amount of Rs. 1,05,705 paid as penalty.
2. The case of the petitioners is that petitioner No. 2 purchased a consignment of rice bran oil from shudham traders of Kanpur for Rs. 3,46,951 and had been transporting the same from Kanpur to Kharagpur, West Bengal by vehicle No. WB 39-4502 (tanker) and all the documents like invoice, consignment note, etc., were kept at the agent's office at Maithon (Chirkunda) for filling up the way bill No. 5719578 dated July 18, 2002. As such the driver at the time of interception of the vehicle at Duburdih Check-post on September 26, 2002 could not produce the papers. The driver on getting verbal permission of the check-post authority at Duburdih for procuring the documents from Chirkunda proceeded with the vehicle along with the consignment but the respondent No. 1, C.T.O. thought that the driver fled with the vehicle and as such lodged an F.I.R. at the Maithon police station and the police officers there intercepted the vehicle and made over charge of that tanker to the respondent No. 1 at the West Bengal Jharkhand border on September 28, 2002. The driver at that time after reaching the Duburdih Check-post produced all the documents including filled up way-bill but respondent No. 1 refused to accept any such document and seized the consignment without affording the statutory period of 48 hours after detention which detention took place on September 28, 2002 which is the very date of seizure. There being no time gap as required by the statute in between the two functions, i.e., detention and seizure, the seizure is bad in law and the subsequent order of penalty also therefore is bad in law and hence the prayer is made for setting aside the seizure and the order of penalty.
3. In the affidavit-in-opposition respondents contend that the said driver of the vehicle at the time of interception at the gate of the Duburdih check-post on September 26, 2002 at 7 : 45 p.m. produced some documents evidencing carrying of "jhola gur" from Kanpur to Raniganj.
After instruction of the officials to place the vehicle, i.e., tanker No. WB 39-4502 at the checking yard for physical verification, the driver fled away with the tanker. As a result, the check-post officials started chasing the running tanker which took different routes and ultimately entered Jharkhand State. F.I.R. as such had to be lodged at the police station of Maithon Qharkhand). The police officer of Maithon police Station after intercepting the said tanker intimated by letter about such interception and the check-post officials received that tanker at the West Bengal--Jharkhand border from the police team of Maithon police station on September 28, 2002. Then verification of the goods and the documents, started at the Duburdih check-post. It was found that the tanker was actually carrying 13,050 kg., rice bran oil--Schedule IV goods without any supporting document like way bill, etc., as a result of which seizure was duly made. The copy of seizure receipt with reasons for seizure was made over to the literate driver.
The driver fully understood the ground of seizure. The said driver appeared in the hearing of the penalty proceeding on September 29, 2002 and the order of penalty was passed in his presence. The facts of the case as stated do not show that the detention and seizure in this case has been made simultaneously. After interception of the vehicle on September 26, 2002, the driver never prayed for time for producing documents. In fact on September 28, 2002 the date of seizure and on September 29, 2002 at the time of penalty proceeding or even at the time of hearing in revision, the petitioner or the driver failed to produce any document, way-bill, etc., in support of the transportation of huge quantity of rice bran oil. Accordingly, seizure has been validly made. The penalty that was imposed by the C.T.O. has already been modified to some extent by the Assistant Commissioner in revision.
In the back ground of the gross violation of the statutory provisions regarding restrictions and conditions on movement of goods, the order of penalty also cannot but be sustained.
4. In the affidavit-in-reply there is nothing new except reiterating that all the documents like bill, consignment note, way bill, etc., were duly produced on September 29, 2002 and the order of penalty was written behind the back of the driver since the order bears driver's signature only on the first page of the order which signature was obtained on a blank paper.
Whether the order of seizure and the order of penalty can be sustained or not.
5. Learned advocate for the petitioner took us through the provisions of Section 70 of the West Bengal Sales Tax Act, 1994 to emphasise that interception of road vehicle is followed by detention of the same which detention may lead to seizure only after allowing 48 hours time to the person bringing such goods for furnishing particulars in such form or such documents as may be prescribed under Section 68 or Section 73 of the Act of 1994. From the facts of this case as stated by learned advocate, there was no detention notice to the driver of the vehicle carrying the seized goods and the detention as a matter of fact took place only on September 28, 2002 on which very date and time of detention the seizure was also made. At the time of interception on September 26, 2002, the driver took permission' from the check-post official to bring the required documents from the agent at Chirkunda, but the respondent No. 1 wilfully concocted a story of the driver's speeding away with the vehicle. So, learned advocate for the petitioner contends that the seizure has been unlawful as detention and seizure has been made in this case almost simultaneously on the same date, i.e., September 28, 2002 without affording any opportunity to the petitioner-driver to produce relevant documents prior to the seizure.
6. The contention of the learned State representative, Mr. B.N. Basu is that the driver could not produce any document on September 28, 2002 in support of the consignment of rice bran oil which was kept in the tanker in a fully concealed way though some documents which were shown on September 26, 2002 showed as if the tanker contained "jhola gur".
Such entry was made in the vehicle register maintained in the check-post against entry No. 358 dated September 26, 2002. That is also found in annexure "A" which contains ground of seizure. Some documents showing as if the tanker in question has been carrying consignment of "jhola gur" were produced by the driver on September 26, 2002 which are concocted documents. It is only after the driver showed such documents, he was directed to place the vehicle in the checking yard for checking and the detention must be presumed to have started right from that moment but the driver instead of placing the vehicle in the checking yard sped away with the vehicle and moved to opposite direction and ultimately entered Jharkhand and these facts are duly noted in the ground of seizure and the F. I. R. The recovery of the vehicle by the Maithon police and intimation about the same and handing over of the vehicle at the Jharkhand--Bengal border to the check-post authority on September 28, 2002 find support from series of documents like the original memo of the sales tax authority which is the basis of the F.I.R., subsequent intimation to check-post authorities about recovery of the vehicle by the Maithon police officer. So it is submitted that there has been no departure from the statutory provision. The detention started right from September 26, 2002 but the driver since thereafter made himself scarce by speeding away the vehicle. So, the seizure made on September 28, 2002 after the order of placing the vehicle in the checking yard on September 26, 2002 has been perfectly lawful.
7. At this stage, learned advocate for the petitioner refers to an order in RN-122 of 1996 Rawal Papers Limited v. Inspector of Commercial Taxes [1999] 115 STC 690 passed by this Tribunal to emphasise that the time and date of entry of the vehicle in the vehicle register at the check-post at the time of interception cannot be taken as the time and date of detention. Interception takes place when the documents are scrutinised and the check-post official then considers it necessary to detain vehicle. The entry in such vehicle register at the check-post merely shows the time of arrival of different vehicles at the check-post. Mere arrival of a vehicle at the check-post does not indicate that the documents were scrutinised and detention started at the exact moment of such reporting.
8. The legal position is clear. The seizure immediately after detention of the vehicle is not contemplated under the Act. The person concerned has to be allowed an opportunity to furnish such particulars in such forms or documents as may be prescribed under Section 68. To enable that person to furnish such particulars a reasonable period of time not exceeding 48 hours is generally to be given after detention. If such opportunity of providing reasonable time is not given by the authority to furnish the required documents, the seizure would not be in accordance with the provisions of the Act. If the consignment is seized right at the time of interception the seizure becomes illegal. On perusal of the judgment of this Tribunal in RN-122 of 1996 Rawal Papers Limited v. Inspector of Commercial Taxes [1999] 115 STC 690 xerox copy of which has been filed by the petitioner, it transpires that the facts there are distinguishable from the instant one before us. There, the available records showed that no time was actually given for production of permits after interception, though the respondent-authorities there tried to show that there was a gap of about 22 hours between interception and seizure. It was also observed there in that judgment that the mere fact of arrival of the vehicle at the check-post at certain time and date does not by any means indicate that the documents were scrutinised and interception started at the exact moment of such reporting. In the instant case before us the vehicle admittedly was intercepted on September 26, 2002 at Duburdih check-post and some documents were scrutinised which appeared to be suspicious and so the driver was asked to place the vehicle in the checking yard for verification. So, detention started right from that time though the driver thereafter fled away and ultimately the driver with the tanker could be brought with the help of police authorities of Maithon police station on September 28, 2002. The driver is a literate person as appears from the signature in English of the driver appearing in some of the documents like seizure receipt, penalty order, etc. Absence of his signature in two other pages of the penalty order cannot prove his absence in the penalty proceeding. We have perused the grounds of seizure annexure "A" to the petition and annexure "A" to the affidavit-in-opposition. We directed the respondent to produce the official memo No. 9866 dated September 26, 2002 and the letter dated September 28, 2002 of the Officer-in-Charge (O.C.), Maithon police--which are referred in the grounds of seizure. We find then that the facts stated as forming the grounds of seizure find support from the memo lodged as an F.I.R. and the relevant intimation by the Maithon police with request to get the vehicle from them from Jharkhand--West Bengal border. We do not find anything as such to disbelieve those documents which prove the allegation as made by the respondent-authorities. We have also gone through the impugned orders of C.T.O., A.C. and the D.C. The D.C. in his Order dated January 6, 2003 has given in detail the reasons as to why he affirms both the order of seizure and the order of penalty. In view of the reliable documentary evidence submitted we agree with the finding and the reasons behind the finding as made by the D.C. in his order dated January 6, 2003. That being the case we find the seizure as made is legal and valid. In the background of the mala fide intention for evading sales tax in the way as stated and in view of the reduction already made in the amount of penalty from Rs. 1,75,000 to Rs. 1,05,705 by the revisional authority, we do not find any reason to interfere with the decision.
9. As such both the points are decided against the petitioner. The application therefore fails. Ordered that the application be and the same is dismissed without any order as to costs.