OM TRADING COMPANY Vs. CTO DUBURDIH CHECK POST

JUDGEMENT

(1.) IN this application under Section 8 of the West Bengal Taxation Tribunal Act, 1987 the petitioner challenges the seizure dated September 28, 2002 of rice bran oil and also the order dated September 29, 2002 of penalty by Commercial Tax Officer (CTO), Duburdih check -post (respondent No. 1) and the revisional order dated October 9, 2002 passed by the Assistant Commissioner (A.C.), Commercial Taxes, Asansol Circle (respondent No. 2) and the second revisional order dated January 6, 2003 by the Deputy Commissioner (D.C.), Commercial Taxes, (respondent No. 3) affirming the seizure and modifying the penalty amount from Rs. 1,75,000 to Rs. 1,05,705. Prayer has also been made for refund of the amount of Rs. 1,05,705 paid as penalty.

(2.) THE case of the petitioners is that petitioner No. 2 purchased a consignment of rice bran oil from shudham traders of Kanpur for Rs. 3,46,951 and had been transporting the same from Kanpur to Kharagpur, West Bengal by vehicle No. WB 39 -4502 (tanker) and all the documents like invoice, consignment note, etc., were kept at the agent's office at Maithon (Chirkunda) for filling up the way bill No. 5719578 dated July 18, 2002. As such the driver at the time of interception of the vehicle at Duburdih Check -post on September 26, 2002 could not produce the papers. The driver on getting verbal permission of the check -post authority at Duburdih for procuring the documents from Chirkunda proceeded with the vehicle along with the consignment but the respondent No. 1, C.T.O. thought that the driver fled with the vehicle and as such lodged an F.I.R. at the Maithon police station and the police officers there intercepted the vehicle and made over charge of that tanker to the respondent No. 1 at the West Bengal Jharkhand border on September 28, 2002. The driver at that time after reaching the Duburdih Check -post produced all the documents including filled up way -bill but respondent No. 1 refused to accept any such document and seized the consignment without affording the statutory period of 48 hours after detention which detention took place on September 28, 2002 which is the very date of seizure. There being no time gap as required by the statute in between the two functions, i.e., detention and seizure, the seizure is bad in law and the subsequent order of penalty also therefore is bad in law and hence the prayer is made for setting aside the seizure and the order of penalty.

(3.) IN the affidavit -in -reply there is nothing new except reiterating that all the documents like bill, consignment note, way bill, etc., were duly produced on September 29, 2002 and the order of penalty was written behind the back of the driver since the order bears driver's signature only on the first page of the order which signature was obtained on a blank paper.