- (1.) THIS is an application under Section 8 of the West Bengal Taxation Tribunal Act, 1987, praying, inter alia, for refund of the amount of Rs. 1,40,100 accepted by the respondent on the basis of the notice of demand dated March 22, 2000.
(2.) THE case of the petitioners in brief is that the petitioner is a proprietor and dealing with purchase of various commodities. On or about March, 2000, the petitioner imported weighing about 10,050 kgs. betel nuts at a price of Rs. 60 per kg. against way bill in form No. 42 bearing No. 25355114 and 10,000 kgs. at a price of Rs. 50 per kg. against the way bill No. 2604063. The aforesaid consignments were kept in the godown and subsequently, it was found that the condition of those commodities are gradually deteriorating. In such circumstances, the petitioner contacted the purchaser Jainco Exports who agreed to sell the betel nuts at the rate of Rs. 40 per kg. On March 13, 2000, the commodities were consigned to Jainco Exports along with relevant documents necessary for production at the check -post. The vehicle bearing No. HR -51GA/0856 was intercepted on March 15, 2000 and the relevant documents were produced to the officers during interception. In spite of that, the vehicle was detained and the respondent No. 1 refused to endorse the documents and to allow the vehicle to pass through the check -post. On March 18, 2000, the respondent No. 2 seized the consignment on the plea that the importation was done with an intention to evade tax. After seizure legal procedures were adopted though not in compliance with the provisions of law under the Sales Tax Act and Rules. Penalty was imposed to the tune of Rs. 1,40,100 assessing the valuation of the goods at the rate of Rs. 80 per kg. The amount was paid on protest. Refund has been prayed for illegal action taken by the seizing officer and the assessing officer.
(3.) AT the time of hearing, it is submitted on behalf of the petitioners that the proceeding adopted by the seizing authority was not in accordance with rule since in his order dated March 22, 2000, the C.T.O. referred to the provision of Rule 212, Sub -rule (10) and came to the conclusion that the betel nuts was under -valued and the valuation was Rs. 11,04,000. Penalty of Rs. 1,40,100 was imposed for violation of Rule 212(10) of the West Bengal Sales Tax Rules, 1995. This is utter violation of the provisions since Rule 212(10) is not applicable in the present case rather 214C of the said Rules is applicable. The second point of argument is that there is no provision in the Act or Rules to assess the value of the consignment and to fix the rate arbitrarily relying on the notification made in the newspaper. The finding of the C.T.O. and the respondent No. 2 is illegal and liable to be set aside with the direction for refund of the amount of Rs. 1,40,100 realised towards penalty. On behalf of the respondents it is submitted that it is a duty of the seizing officer to act according to law and rules. The purpose of the Sales Tax Act is to see that the dealers are not evading tax circumventing the position of law. It is a duty to see under Section 68 of the Act that there is no evasion of tax ; as such he can look into the value while valuing the commodities in terms of Rule 214C(4). The learned lawyer for the State also relied on the decision reported in [2000] 117 STC 315 (Commissioner of Sales Tax v. P.T. Enterprises) where his lordship of the apex Court clarified the word "verification" in connection with the provisions for realisation and assessment of tax. On behalf of the petitioners relying on the decision reported in [2000] 117 STC 315 (SC) (Commissioner of Sales Tax v. P.T. Enterprises) it is submitted that since the Madhya Pradesh General Sales Tax Act, 1958 authorises a check -post officer to question with reference to the market value of the goods, the action was supported by the decision of the honourable Court. Since there is no clear provision in the West Bengal Sales Tax Act, the C.T.O. or the seizing officer had no authority to verify the particulars of the goods with reference to the supporting documents lying in the possession of the driver of the vehicle.;