FRESH EXPRESS Vs. COMMERCIAL TAX OFFICER

JUDGEMENT

(1.) M /s. Fresh Express, a transporter of Sangli in the State of Maharashtra, has filed this application under Section 8 of the West Bengal Taxation Tribunal Act, 1987 questioning the legality and propriety of the order of seizure and consequential imposition of penalty imposed by Commercial Tax Officer, Siliguri Range and the revisional order dated September 24, 2002 passed by the Assistant Commissioner, Commercial Taxes, Siliguri Range confirming the said imposition of penalty.

(2.) IN February 2002, M/s. Nestle India Ltd., engaged the present petitioner for transporting their goods as stock transfer from Goa to three different places, viz., Patna in Bihar, Siliguri in West Bengal and Guwahati in Assam. All the goods were sent by the same vehicle but under three different consignment notes, viz., consignment note No. 000673 for Patna, No. 000674 for Siliguri and No. 000675 for Guahati. The petitioner's vehicle bearing registration No. MH -10A 9585 proceeded from Goa to Guahati via Patna and Siliguri. The consignment meant for Patna godown was unloaded at Patna and thereafter, the vehicle entered West Bengal without stopping at Dalkhola check -post at the entry point in West Bengal. The said vehicle was intercepted at Phansideoa check -post near Siliguri on February 25, 2002. The driver of the vehicle could not produce any declaration required for the goods meant for Guahati in Assam nor any way -bill for the goods to be unloaded at Siliguri. As there was contravention of Sections 68 and 72 of the West Bengal Sales Tax Act, 1994 (hereinafter referred to as, "the 1994 Act"), the consignments meant for Guahati and Siliguri were seized. On February 26, 2002, one Shri Sajjan Kumar Sharma, authorised representative appeared before the Commercial Tax Officer and upon hearing, the Commercial Tax Officer found that there was violation of Section 72 in respect of the consignment meant for Guahati and imposed a penalty of Rs. 2 lakhs for the said Guahati -bound consignment. The penalty amount comprised 16.4 per cent of the invoice value being Rs. 12,20,625. When a notice demanding the penalty amount was issued, Nestle India Ltd., furnished an undertaking on February 6, 2002 to pay the penalty amount and requested the Commercial Tax Authorities to release the concerned consigned goods on such undertaking. The Additional Commissioner, Commercial Taxes, West Bengal accepted the said request and directed to release the seized goods on the basis of the undertaking given by M/s. Nestle India Ltd. The present petitioner moved the Assistant Commissioner of Commercial Taxes, Siliguri Range in revision against the aforesaid penalty order. By order dated September 24, 2002, the Assistant Commissioner rejected the revision and upheld the penalty imposed by the Commercial Tax Officer. Being aggrieved, the petitioner has moved this Tribunal.

(3.) IT has been submitted that the goods meant for Guahati were ultimately sent out of West Bengal and actually delivered at Guahati and as such, there was no evasion of any sales tax in West Bengal. For the purpose of imposition of penalty or contravention of Section 72 of the Act of 1994, actual evasion of tax is not necessary. The purpose of Section 72 is to prevent any kind of possibility of evasion of tax. What is required to be ascertained is that if the contravention was not detected, whether the dealer or transporter could have unloaded, delivered or sold those goods in West Bengal. Once the possibility is established, it is for the concerned person to prove that in fact there was no such possibility in the facts and circumstances of the particular case. Post -interception/post -detection conduct is not material inasmuch as nobody after interception or detection will normally venture to commit any further illegality or irregularity. Post -interception conduct may be a relevant factor in determining the quantum of penalty. There should be an acceptable explanation for not complying with the requirement of law.