- (1.) This application is directed against an order dated July 14, 2000 passed by the West Bengal Taxation Tribunal in Case No. RN-168 of 2000 whereby and whereunder the writ application filed by the petitioner was dismissed on the ground of availability of alternative remedy. The petitioner is a registered dealer both under the West Bengal Sales Tax Act, 1994 and Central Sales Tax Act, 1956. It placed an order with Eastern Trading Company, Mangalore, for 10,050 kgs., of betelnut packed in 134 bags. The said consignment was sent through Assam Carriers (P) Ltd. In the check-post waybills and other documents accompanying the consignment were verified. However at Andul a purported inspection was made and on the ground that the waybill is under-invoiced, the goods were seized. Questioning the legality of such seizure the application was filed by the petitioner before the learned Tribunal. The learned Tribunal did not go into the merits of the matter but directed as under : "At this stage we are not going into the question as to the jurisdiction of a competent officer to intercept and seize the goods while on transit because that provision of statute is not under challenge. On perusal of the order imposing penalty we find that the learned Commercial Tax Officer himself has observed that the price of arecanuts in Karnataka is varying between Rs. 55 and Rs. 65 per kg. Therefore, the under-invoicing, if any, is to be considered in the context of the price which according to the officer himself is prevailing in Karnataka. At any rate for adjudication of the dispute we have come to a finding as to whether there is an under-invoicing or what is the proper price of arecanuts in the market. These are purely questions of fact on which the fact-finding authorities should record their findings first. Accordingly, the instant application cannot be entertained. The applicant must exhaust all the alternative remedies available under the statute. However, the applicant's prayer for instant release of the goods is taken into consideration. Admittedly, the applicant is a registered dealer. The seized goods shall be released provided the applicant furnishes security to the extent of Rs. 2,70,000, 50 per cent of which should be in cash and 50 per cent should be by way of bank guarantee. If such securities are furnished and evidence to that effect is produced before the C.T.O., Central section, the goods shall be released immediately. The bank guarantee, if furnished, shall be renewed from time to time, as may be required by the competent authority. The security shall abide by the ultimate decision in the revision application, if any, filed. This security amount will not influence the penalty amount as may be fixed. Mr. Chakraborty submits that the original documents like the waybill, consignment note and invoice may be returned to the applicant. Mr. Saha Roy has no objection provided the applicant furnishes photocopies of the same duly authenticated by the applicant No. 1 or his authorised representative. The original documents, be returned provided photocopies of the same duly authenticated by the applicant are furnished to the Revenue. Thus, the instant application is disposed of without any order for costs."
(2.) Mr. Chakraborty, learned counsel appearing on behalf of the petitioner has raised a short question in support of this application. The learned counsel submits that the main purpose of seizure is to check evasion of tax. By reason of under-invoicing his client did not benefit itself by way of short payment of tax but evasion if any was on the part of the consignor. The learned counsel would submit that having regard to the provisions of Section 68 of the West Bengal Sales Tax Act, 1994 and ratio of Rule 212(9) of the West Bengal Sales Tax Rules, 1995 the concerned authority had no jurisdiction to effect any seizure.
(3.) The learned counsel appearing on behalf of the respondent when asked, very fairly stated that there does not exist any provision in the West Bengal Sales Tax Rules for seizure of goods for under-invoicing. The learned counsel drew our attention to the effect that in Tamil Nadu there exists such provision in respect whereof reliance must be placed in Commissioner of Sales Tax v. P.T. Enterprises. Section 68 of the Act and Rule 212(9) of the Rules read thus : "Section 68(1) : To ensure that there is no evasion of tax, no person shall transport from any railway station, steamer station, airport, port, post office or any check-post set up under Section 75 or from any other place any consignment of goods except in accordance with such restrictions and conditions as may be prescribed. (2) ............................ (3) Subject to the restrictions and conditions prescribed under Sub-section (1) or Sub-section (2), any consignment of goods, may be transported by any person after he furnishes in the prescribed manner such particulars in such form obtainable from such authority or in such other form as may be prescribed. (4) Subject to such restrictions and conditions as may be prescribed, nothing in Sub-section (1) shall apply to-- (a) duly accredited diplomatic personnel attached to foreign consulates or other diplomatic offices, (b) organisations and specialised agencies of the United Nations, (c) Khadi and Village Industries Commission, (d) Embarkation headquarters, Shipping section, Customs Group, Ministry of Defence, Government of India, Calcutta, or (e) such other persons, organisations or institutions as may be prescribed." "212. (9) The Commercial Tax Officer or Inspector of a check-post empowered to endorse the waybill in form 42 or such Assistant Commissioner or Commercial Tax Officer, as the Commissioner may authorise to proceed under Section 69 outside the check-post, may verify correctness of the description, quantity, weight or value of the goods of a consignment as mentioned in the accompanying waybill with the description, quantity, weight or value which are actually found n such consignment.";