KAUSAR INDIA LTD. AND ANR. Vs. SALES TAX OFFICER AND ORS.

JUDGEMENT

(1.) IN this case the petitioner No. 1 is a limited company within the meaning of the Indian Companies Act, 1956, and a recognized transporter of frozen and perishable cargo and petitioner No. 2 is the operation manager thereof.

(2.) The Nestle India Limited contracted petitioner No. 1 to carry Nestle chocolate of different variety worth Rs. 20,15,090 from Goa to its depot at Siliguri, West Bengal and accordingly the goods were loaded in vehicle No. HR -55E/0346. On November 18, 2007 the goods vehicle entered into West Bengal, crossed the entry point Dalkhola check -post and reached Phansidewa check -post where the driver produced the documents relating to the consignment, i.e., consignment note No. 36737 dated November 11, 2007 and despatch advice No. 0958081636 except way -bill. The check -post authority detained the vehicle, demanded production of way -bill showing endorsement of the entry point Dalkhola check -post but nothing could be produced before seizure of the goods on November 20, 2007 for contravention of the provisions of the West Bengal Value Added Tax (WBVAT) Act, 2003 and issued notice under form No. 60 inviting objection against imposition of penalty in pursuant whereof petitioner No. 2 along with an advocate appeared before the authority (respondent No. 1, i.e., Sales Tax Officer, Phansidewa check -post) on December 1, 2007 but without accepting the cause/explanation of non -production of the way -bill by December 20, 2007 the value of the seized goods was assessed at Rs. 21,00,000 and penalty was imposed at Rs. 10,50,000 and demand notice was issued in form No. 61. Being aggrieved by the order, the petitioners preferred revision before the Assistant Commissioner of Sales Tax (respondent No. 2) who examined the documents produced and considered the cause shown for not carrying the way -bill and non -production of the same at the entry point check -post by the driver but only modified the amount of penalty reducing to Rs. 2,50,000 by order dated December 5, 2007. The petitioners paid the same to get the goods released but thereafter has filed this application under Section 8 of the West Bengal Taxation Tribunal Act, 1987, for setting aside the orders of seizure and imposition of penalty and partial modification order as bad, illegal and invalid.

(3.) MR . A. Das, learned advocate for the petitioner, argued that the petitioner obtained the required way -bill on October 5, 2007 and instructed the driver that the agent would be present at the entry point check -post at Dalkhola with the way -bill for endorsement and the agent was accordingly present there but the driver failed to locate the check -post due to construction of Golden Quadrilateral Highway and flyover and also failed to contract the agent but petitioner No. 2 produced the way -bill before respondent No. 1 and hence non -consideration of the same has vitiated the orders. It is further argued for the petitioner that the driver voluntarily produced all other documents of the consignment except the way -bill and explained the circumstances under which the way -bill could not be produced and subsequently petitioner No. 2 appeared and produced the way -bill but without taking those into account the penalty proceeding was concluded which is bad in law and hence the order of penalty be set aside. It is also argued that at the stage of revision though respondent No. 2 has considered the ground of non -production of the documents at Dalkhola check -post and production of all documents before imposition of penalty to prove no intention to evade any tax but without recording any reason as to the intention of evading tax or possibility thereof behind the contravention, respondent No. 2 has only reduced the amount of penalty without setting aside the order itself and hence, the revisional order suffers from material irregularity and illegality and hence prays for allowing the application by setting aside the orders impugned with costs.