L.N.Ray (Chairman) - (1.) IN this application under Section 8 of the West Bengal Taxation Tribunal Act, 1987 in the nature of a writ application under Articles 226 and 227 of the Constitution of India, the applicant is challenging the seizure of computer parts imported by the applicant from outside India and imposition of penalty of Rs. 1,30,610 under Section 71 of the West Bengal Sales Tax Act, 1994 (in short, "the 1994 Act"). The question raised in the application is whether on the basis of newspaper reports about assurance said to be given by the Finance Minister of the State Government regarding non -application of penal provisions in cases of non -production of way bills, the statutory authorities under the 1994 Act ought not to have made seizure or imposed penalty for contravention of statutory provisions relating to way bills.
(2.) THE applicant's case is that he is a dealer registered under 1994 Act and running a business of resale of computer spare parts. He imports the goods from outside India and sells them within as well as outside the State of West Bengal. The impugned consignment of computer parts was imported from Taipei in Taiwan. The exporter company was Ability Electron Co. Ltd. of Taipei. After payment of customs duty at the Calcutta Airport, applicant allegedly wanted to know the actual position of law in the matter of production of way bill from the check -post authorities of Calcutta Airport, because although the law had been amended by abolishing the system of production of permit, the newly introduced provision for production of way bill was kept in abeyance with effect from July 1, 1998 by the State Government. The impression that was received from the check -post authorities was that way bill was not required in view of the newspaper report and no permit could be accepted as the law had been amended. Allegedly on that basis the check -post authorities of Calcutta Airport released the goods without demanding any way bill. But on July 13, 1998 when truck No. WB -41 -5989 loaded with the said computer goods was moving towards the applicant's office, respondent No. 1 intercepted the goods and brought the truck to the office of the Commercial Taxes Directorate, 14, Beliaghata Road, Calcutta. Although the driver produced invoice and bill of entry and submitted that no way bill was required to be produced for transportation of the goods as per "instruction of the Finance Minister in various newspapers", respondent No. 1 detained the truck and issued a detention order to the driver. The 14th July, 1998 was declared as holiday on account of death of a Minister of State of the State Government. Therefore, on July 15, 1998 when applicant appeared before respondent No. 1, the latter immediately handed over seizure receipt and a notice in form 44 under Section 71 of 1994 Act for showing cause why penalty should not be imposed for contravention of Section 68 of 1994 Act. On the applicant's request, the seizure case was heard expeditiously on July 17, 1998. A written submission was also submitted on that date. The driver had contended that the provision for production of way bill had been kept in abeyance by the Finance Minister and hence there was no requirement for way bill. In support of his contention, the applicant's representative furnished a report published in the Statesman dated July 1, 1998. It was also alleged that the check -post authority of Calcutta Airport had allowed the applicant to move the goods after verification thereof. It was claimed that there was no mala fide intention on the part of the applicant for importing the goods without way bill. If the check -post authority insisted upon production of way bill, the applicant might obtain and thereafter produce the way bill. Thereafter, respondent No. 1 imposed a penalty of Rs. 1,30,600 at the rate of 25 per cent of value of the goods. The applicant took release of the goods upon payment of the entire penalty of Rs. 1,30,600. Thereafter, a revision application was filed before respondent No.2, Assistant Commissioner. Having failed in the revision, the applicant filed another revision application before respondent No. 3, which was also unsuccessful. There is no dispute that computer parts are goods specified in Part A (Sl. No. 18) of Schedule IV to 1994 Act. Before July, 1998 the statutory provision was that in terms of Section 68 of 1994 Act and Rules 210 and 211 of the West Bengal Sales Tax Rules, 1995 (in short, "1995 Rules") a declaration in form 40, which is a prescribed form with the heading - -"declaration of imports/application of permit" - -was required to be produced along with railway receipt, bill of lading, or document of like nature before the appropriate assessing authority or the appropriate inspector for his signature where goods specified in Part A of Schedule IV were to be taken delivery of from places like railway station, steamer station, sea port, airport or post offices. Under Sections 69 and 70 of 1994 Act seizure of the goods was to be made, when upon detention, the person importing the goods failed to furnish the required particulars in the prescribed form under Section 68. Rule 211, as it stood then, laid down that when the consignment would be intercepted, the person importing or bringing the goods was required to present the declaration endorsed under Rule 211(3). In trade parlance the said declaration was known as permit. The aforesaid provisions in the Act and the Rules related to notified goods and goods specified in Part A of Schedule IV. Subsequently various changes were effected in Sections 68, 69, 70 and 71, etc., as well as in Rules 210 and 211. With effect from April 1, 1998 Section 68 was so amended as to apply to "any consignment of goods". Therefore, with effect from April 1, 1998 Section 68 applied to all goods, whereas previously it had applied to only notified goods and goods specified in Part A of Schedule IV, Again, with effect from July 1, 1998, Sections 68, 69, 70 and 71 and Rules 210 and 211, among others, were amended. One of the basic results of the amendments with effect from July 1, 1998 was that the provisions were made applicable to any goods, instead of to only notified goods and goods specified in Part A of Schedule IV. "Any goods" obviously means "any taxable goods", because the said provisions were enacted "to ensure that there is no evasion of tax", as declared in Section 68(1). Unless a goods is taxable, the question of evasion of tax in relation to such goods does not arise. Notified goods and goods specified in Part A of Schedule IV are also taxable goods, but there are other goods which are taxable, they are neither notified goods nor goods specified in Part A of Schedule IV. The new system of way bill in place of permit or declaration was introduced by the amended Rules with effect from July 1, 1998. Of course, prior to July 1, 1998 no permit or declaration was required for importation of taxable goods other than notified goods and goods specified in Part -A of Schedule IV.
(3.) IT is undisputed that applicant was transporting by way of importation goods specified in Part A of Schedule IV, without any way bill, according to the new system, or without any permit/declaration according to the old system. The failure to carry and produce way bill clearly amounts to contravention of Section 68 and other provisions including Rules 210 and 211. The applicant is now justifying the failure by taking shelter behind the Finance Minister's assurance reported in newspapers. What happened in the airport is not material. May be, the airport check -post people were influenced by applicant's plea. Or, may be, applicant somehow managed to escape the check -post. Important is the fact that way bill was not produced when intercepted. That is the material contravention of law, It is said in ground No, IV that "the provision for production of way bill at the time of importation of goods from outside the State of West Bengal has been kept in abeyance by the Finance Minister, Government of West Bengal. The Finance Minister of the State was announcing from time to time in various newspapers from the very inception of the provisions for production of way bill that the production of way bill has been kept in abeyance and it was extended till December 31, 1998". In paragraph 6 of the application it was stated that the newly introduced provision for production of way bill was kept in abeyance by the Government of West Bengal. At the time of hearing, learned advocate for the applicant produced original newspapers, namely, the Statesman, the Telegraph and the Business Standard of July 24, 1998, and also the Ananda Bazar Patrika dated July 24, 1998, the Bartaman dated July 25, 1998 and the Economic Times, Calcutta, dated September 2, 1998, and furnished photo -copies of the relevant portions of those newspapers. In the Statesman, the relevant report is to the following effect : "According to Mahesh Singhania, an association spokesman, the Finance Minister assured them that penal provisions under the way bill would be kept in abeyance for another month". The reports in the Business Standard and the Telegraph did not contain anything regarding postponement of implementation of way bill system. The report in the Ananda Bazar Patrika stated inter alia, that the Finance Minister had a meeting with several associations of traders and merchants, and the businessmen were happy on account of relaxation of the Rules by the Minister. The Bartaman reported that the Federation of West Bengal Trade Associations was happy after the discussing with the Finance Minister. He informed that certain advantages would be given relating to way bill. The Economic Times of September 2, 1998 reported that the State Government granted major concessions to traders on the controversial way bill system, and that the Finance Minister relaxed the penal provisions of way bill till end of September in a meeting with representatives of the federation of West Bengal Traders Associations. One of the points reported was that traders would be allowed to obtain way bill without advance tax and the Minister had issued instructions to the department concerned to issue way bills more liberally. These are the relevant portions in the newspaper reports. The reports in the Business Standard, Telegraph, Ananda Bazar Patrika and the Bartaman contain nothing regarding postponement of implementation of way bill system, and nothing specific was reported about advantages or relaxations given to the traders. Such vague reports do not serve any purpose. The Statesman and the Economic Times, however, mentioned that penal provisions of way bill system were to be kept in abeyance. That was also quite vague. The report is not clear as to what the Finance Minister had actually assured.;