TaxTMI 
TaxTMI 
2008 (12) TMI 711
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....6, 40 km away from Chichira check-post and after investigation of the matter by the concerned police station the driver was allowed to shift the trailer to its destination. That the damaged trailer was accordingly mounted in an another trailer bearing No. HR-38K/7447 for carrying it to Kolkata and when it reached at Chichira check-post the driver was asked to produce way-bill. The petitioner met the Assistant Sales Tax Officer and Sales Tax Officer (respondent Nos. 1 and 2 respectively) of Chichira check-post and they advised him to meet with the Deputy Commissioner of Sales Tax, Kharagpur Range for procuring way-bill for the purpose of taking the damaged trailer to West Bengal. On December 4, 2007 the petitioner accordingly met with the De....
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....learned advocate for the petitioner, submits that as the trailer in question met an accident in Orissa but permanently registered in West Bengal and that was bringing to West Bengal for repairing no way-bill was required to be obtained and produced at the concerned Chichira check-post and hence demand for way-bill, and instant nonproduction thereof before respondent No. 1 and for that seizure thereof all are illegal, erroneous and bad in law and hence liable to be set aside. It is further argued that to meet the specific demand of production of way-bill when the petitioner had to move from one officer to another and was ultimately able to obtain the same on furnishing bank security of Rs. 30,000 and for a particular purpose of release of th....
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....re is no specific case of the petitioner as to whether the damaged vehicle in question was so transporting to West Bengal from Orissa with any document whatsoever or not. The respondents have categorically asserted in their affidavit-in-opposition that the goods carrying was nothing but a scrap vehicle and no document whatsoever was produced in support of carrying of such goods and it was seized for want of way-bill. Now, the petitioner has annexed xerox copy of some documents to this application filed on December 31, 2007 and those are the certificate/report of the concerned police officer of Bangriposi, Orissa dated December 1, 2007, certificate of registration of the damaged vehicle issued by the registering authority of Chinsura, Hoogh....
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.... repairing and hence a taxable goods whereas the claim of the petitioner was that it was repairable and hence as per the law of taxation no way-bill was required to be produced for its transportation to its registering State. It is also a glaring material on record that no document as to ownership and registration and also authority to move in Orissa was produced before the intercepting officer and hence the presumption was in favour of the check-post for detention of the goods and demand for way-bill. Undisputedly, rather admittedly way-bill was also subsequently obtained by the petitioner and produced before the authority but according to the Department only on December 9, 2007 and hence not within 48 hours of detention or before seizure....
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....o date. What is more amazing to note is that in the same order it is noted that on December 8, 2007 the seizure memo was served by pasting on the front glass of the detained vehicle and in presence of two witnesses though the notice in form 60 dated December 8, 2007 bears the clear signature of the driver also. Evidently the way-bill was issued on December 8, 2007 and it is the case of the petitioner that the same was produced before the authority concerned on that very day but that was not accepted. On cumulative consideration of the above materials on record we find no reason to accept the case of the Revenue that seizure was made on December 6, 2008 and not on December 8, 2007 and/or on that date the driver was not found present and for....
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....time of detention. In appropriate cases this Tribunal has repeatedly observed that mere violation of any provision of the Act does not automatically attracts imposition of penalty unless and until such violation proves intention to evade tax. Here in this case, the concerned officer was not considered the above aspect of the law and has said nothing to lend support that there was any probability of evasion of tax by the petitioner in importing the damaged vehicle without way-bill. On consideration of the documents before us we cannot but to hold that the order of imposition of penalty has been passed mechanically and without applying mind at all. Had it not been so, the officer concerned had materials before him not to pass any order imposi....