P.K.Ganguly, Judicial Member - (1.) THIS is an application under Section 8 of the West Bengal Taxation Tribunal Act, 1987, challenging the seizure dated January 27, 2001 and the order dated March 22, 2001 of respondent No. 1, Commercial Tax Officer, Central Section, imposing penalty with a prayer for setting the same aside. The case of the petitioner is that the petitioner carries on business as proprietor of Burdwan Trading Corporation and his business is of reselling motor parts to various dealers in West Bengal after purchasing the same from both outside and within the State of West Bengal. The petitioner has a godown also at Prakashnagar, Jalpaiguri, which he has taken on rent in September, 2000 and necessary application for amendment in the registration certificate for that has been made. Petitioner is registered under the West Bengal Sales Tax Act, 1994, and Central Sales Tax Act, 1956. One Gourab Sales Agency of Delhi on the basis of the petitioner's order sent a consignment of different motor parts in 192 packages for which the petitioner duly obtained way bill in form 42 and handed the same over to the driver of vehicle No. WB -03 -1851 to enable him to produce the same at Dalkhola check -post at the time of entry into West Bengal. The check -post authority there duly endorsed the way bill and allowed entry into West Bengal. The petitioner unloaded the said goods in his godown at Prakashnagar, Jalpaiguri. On receipt of orders from various parties in Calcutta thereafter, the petitioner loaded the said goods for transporting to his Calcutta office in lorry No. WB -03A -3638 and the driver of the vehicle was handed over road challan, declaration of the said goods as required under Rule 214B of the West Bengal Sales Tax Rules, 1995. On January 25, 2001 the vehicle was intercepted at Dhubulia near Krishnanagar by the Commercial Tax Officer - -respondent No. 1 and after the driver showed the documents, the driver was directed to bring the vehicle at the Sales Tax Directorate Office at 14, Beleghata Road. On January 27, 2001 respondent No. 1 verified the goods and thereafter seized the goods on the ground of discrepancy in the quantity of the goods and on the ground of failure to show any way bill. The penalty proceeding thereafter was started and respondent No. 1 imposed a penalty of Rs. 3,38,861 by determining the value of the goods at Rs. 11,29,550. The contention of the petitioner is that the transportation is here guided under the provision of Rule 214B of the 1995 Rules but respondent No. 1 appears to have misguided himself by following the provisions of Rule 212 of the said Rules and thereby erred in law as well as in fact and hence the prayer of the petitioner as made should be allowed.
(2.) CONTENTION of the respondent is that it is a case of importation of goods from Delhi to Calcutta and there can be no possible reason for the goods to reach Dalkhola check -post which is too far away in the north from the usual route. Moreover, there is no document showing endorsement of the documents at Dalkhola check -post. There is no way bill also. The story of unloading at Jalpaiguri and reloading in a different truck as made has been introduced to create confusion to cover up the petitioner's clandestine import business. Moreover, discrepancy had been found on the number of packages on verification. The detention order has been made giving valid reason thereof. The seizure also has been made by giving proper reason on being objectively satisfied. It is also stated that no way bill was ever produced before the authority. The application therefore requires to be dismissed. The petitioner used in this case affidavit -in -reply. It has been mentioned that the way bill was duly endorsed by the check -post authority at Dalkhola and in the way bill relevant consignment numbers find place and those tally with the consignment numbers mentioned in the seizure receipt. So, the goods imported cannot but be the goods actually seized. Moreover, it is the petitioner who is the proper person to decide as to the check -post through which the consignment would enter West Bengal. When the 14 packages of goods were found short, the petitioner cannot be made liable for penalty in respect of the entire consignment as mentioned in document.
(3.) THE points for consideration are : No. 1. Is the order of seizure legal and valid ? No. 2. Is the order imposing penalty lawful ?;