TaxTMI 
TaxTMI 
2010 (3) TMI 865
X X X X Extracts X X X X
X X X X Extracts X X X X
....its customs house agent (CHA) to clear the consignment of goods imported from Hamburg. To enable the appellant to clear the consignment, M/s. Sanman Trade Impex Private Limited sent all the relevant documents required for getting the goods cleared from Kolkata to Mumbai. M/s. Sanman Trade Impex Private Limited also forwarded copy of the declaration in form 44A, duly endorsed, to the appellant to be produced before the sales tax authority posted at Haldia (for short, "first check-post"). M/s. Sanman Trade Impex Private Limited appointed M/s. Brahmaputra Roadways, Kolkata, as its transporter for onward transportation of the imported goods from Kolkata to Mumbai. According to the appellant, the imported goods were to be handed over by him to the transporter, M/s. Brahmaputra Roadways, along with all the necessary documents for onward transportation of goods to its final destination after getting the goods duly cleared from the customs and port authorities. According to the appellant, the goods were duly received by M/s. Sanman Trade Impex Private Limited on October 30, 2001, which fact is duly certified by the letter from M/s. Sanman Trade Impex Private Limited informing him that t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pheld by the High Court vide judgement dated December 17, 2007 Reported as P. D. Prasad & Sons Pvt. Limited v. Commissioner of Commercial Taxes [2009] 25 VST 335 (Cal)., hence, this civil appeal is filed by the appellant. For the sake of convenience, we quote hereinbelow the relevant provisions of the Act: "68. Restriction on movement of goods.-(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. . . . 69.. Interception, detention and search of road vehicles and search of warehouse, etc.-For the purpose of verifying whether any consignment of goods are being or have been transported in contravent....
X X X X Extracts X X X X
X X X X Extracts X X X X
....om the date of the notice: Provided that the Commissioner or the Additional Commissioner may, for reasons to be recorded in writing, extend the date of payment of the penalty for such period as he may think fit. 71B. Penalty for contravention of the provisions of section 68 when goods transported are not available.-(1) Where the goods are, or have been, transported by a person, dealer or casual trader in contravention of restrictions or conditions prescribed under section 68 and such goods are not available for seizure under sub-section (1) of section 70, the Commissioner, or the Additional Commissioner, shall, after giving such person, dealer or casual trader a reasonable opportunity of being heard, impose a penalty of a sum not exceeding twenty-five percentum of the value of such goods. (2) The procedure for imposition of penalty as prescribed under section 71A shall apply mutatis mutandis in the matter of imposition of penalty under this section. 72.. Regulatory measures for transport of goods through West Bengal.-(1) When a goods vehicle, transporting any goods (other than goods sales of which are tax-free under section 24), enters into West Bengal, and such vehicl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r any place outside West Bengal, he shall, in addition to a document of title to the goods, carry with him, in respect of such goods,- (a) where carriage is caused by a sale of such goods, two copies of the bill or cash memorandum issued by the seller of such goods, and a way-bill in the prescribed form, or such document, containing description, quantity or weight and value of the goods and such other particulars as may be prescribed, or (b) where carriage is caused otherwise than by a sale of such goods, two copies of the forwarding note, delivery challan or document of like nature, by whatever name called, issued by the owner or consignor of such goods, and a way bill in the prescribed form containing such particulars as may be prescribed." We may also quote hereinbelow rule 211A of the Rules along with the declaration form appended to the said rule: "211A. Procedure for transport from railway station, port, airport etc., of any consignment of goods despatched from any place outside West Bengal and bound for any place outside West Bengal.-(1) Where any consignment of goods other than those referred to in the Explanation to sub-rule (1), or in sub-rule (2), of r....
X X X X Extracts X X X X
X X X X Extracts X X X X
....est Bengal after taking delivery (j) registration No. of the road vehicle if such goods are transported to such destination by a road vehicle: (k) railway receipt/bill of lading/air-consignment note/ postal receipt No. and date: (l) name of the exit check-post: (m) approximate date by which the vehicle shall move outside West Bengal: (n) where the goods are being transported by a road vehicle,- (i) whether there is any possibility of transhipment in West Bengal (please tick whichever is applicable) yes/no; (ii) if yes,- (A) place of such transhipment: (B) vehicle No. after the transhipment is effected: (C) name and address of the transporter: (D) consignment note No. and date: Date: . . . . . . . . . Signature of the importer/clearing and forwarding agent/the person taking delivery of the consign-ment of goods from port, airport, railway station, post office for despatch of the same outside West Bengal . . . . . . . . . . . . . . . . . . . .. . . . . . . . . Full name of the signatory . . . . . . . . . . . . . . . . . . . . . . . . . ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... transported with those specified in such declaration, endorse such declaration, retain one copy of such endorsed declaration and return the other copy of it to the person transporting such goods for onward movement to the place of destination outside West Bengal after recording in a register the particulars given in the endorsed declaration and other connected documents and also the particulars of transhipment of the goods, if any, in West Bengal. (7) For the purposes of interception, detention, search and seizure by any authority under this rule, the procedure in such matters contained in the provision of rule 212 shall apply mutatis mutandis. (8) Any infringement of any provision of this rule by the person referred to in sub-rule (1) shall be deemed to be a contravention of the provisions of section 68 by the person referred to in the said sub- rule." The Act has been enacted to consolidate and amend the laws relating to the levy of tax on sale or purchase of goods in the State of West Bengal. Under Explanation (2) to section 2(10) of the Act, an agent for handling or transporting of goods or handling of document of title to goods is a "dealer". Agents of all ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t of the charging provisions. These regulatory measures are intended to ensure that there is no evasion of tax. Therefore, one cannot read the Act by segregating the machinery provisions from the charging provisions. Rule 211A of the Rules deals with procedure for transport from port, check-posts, etc., of any consignment of goods despatched from any place outside West Bengal and bound for any place outside West Bengal. In the present case, the subject goods have come from Hamburg, which is a place outside West Bengal. They passed through the customs barrier, the port barrier and the sales tax barrier at Haldia (which is the first check-post) and, ultimately, were bound for Mumbai through the exit check-post at Chichira. In short, the goods were meant to be in transit through the State of West Bengal and they were bound for Mumbai, which is a place outside West Bengal. In such a situation, rule 211A of the Rules was applicable. In this case, we are required to ascertain whether the appellant, who has signed the declaration in the prescribed form, has complied with the said rule. If not, the consequence of non-compliance. If one reads section 68(3) of the Act along with rule 211A....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e appellant becomes liable for a breach if he fails to produce the counter-signed copy of the declaration before the assessing authority. The declaration is in triplicate. One copy duly endorsed remains with the sales tax authority at the first check-post which, in the present case, is at Haldia. The remaining two counter-signed copies of the declaration in the prescribed form are carried by the declarant to the exit check-post where one copy is retained by the authority and the other is given to the declarant. In the present case, the endorsed counter-signed copy of the declaration has not been produced by the appellant in the impugned proceedings before the assessing authority. Non-production thereof raises a legal presumption of tax evasion. The reason is that when counter-signed copy of the declaration is not produced, law presumes, unless otherwise proved, that goods in question have been consumed, used or otherwise disposed of within the State. In the present case, there is no evidence whatsoever to rebut that presumption. There is no material to indicate that the goods had crossed the border at Chichira, except a confirmation from the consignee that it has received the go....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sub-section (1) of section 68 of the Act can only be lifted in a situation falling under sub-sections (3) and (4) of section 68 of the Act. Under sub-section (3), any person, who seeks delivery of the consignment, is required to undertake an obligation that he is undertaking that delivery for transporting such consignment to its destination outside West Bengal. Section 71B of the Act is consequential upon contravention of provisions of section 68 when goods transported are not available. It says that where the goods are transported by a person in contravention of restrictions or conditions prescribed under section 68 of the Act read with rule 211A of the Rules, including the declaration therein, and if such goods are not available for seizure, the prescribed authority shall, after giving reasonable opportunity of being heard, impose a penalty. That penalty is an amount not exceeding twenty five per cent of the value of such goods. Section 71B read with section 68 of the Act indicates that if the declarant undertakes delivery of the consignment with an obligation to transport such consignment of goods to its destination outside West Bengal and if he contravenes any restrictions o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....my between a transporter and a CHA/clearing and forwarding agent. In the present case, we are concerned with the contravention of the provisions of section 68 of the Act by a person who makes a declaration in the prescribed form in terms of rule 211A(1) of the Rules. One of the key arguments advanced on behalf of the appellant herein was that rule 211A(6) of the Rules applies to the transporter/carrier, who is in possession of two countersigned copies of the declaration when the goods are being transported across the exit check-post of West Bengal, because it is the transporter who gets back the endorsed declaration as "a person transporting the goods for onward movement". According to the appellant, rule 211A(8) of the Rules has no application as the said sub-rule is consequential to the applicability of sub-rule (6) of rule 211A, which sub-rule is applicable only in the case of a transporter. In other words, according to him, sub-rule (6) casts an obligation on the transporter and not upon the CHA, whose assignment is confined to the precincts of the customs port. We find no merit in this submission. Under sub-rule (2) of rule 211A of the Rules, the declaration, in triplicate,....