DAYAL ENTERPRISE Vs. COMMERCIAL TAX OFFICER SHYAMBAZAR CHARGE

JUDGEMENT

(1.) THE short question involved in this application made under Section 8 of the West Bengal Taxation Tribunal Act (West Bengal Act 8 of 1987), is whether detention of the impugned notified goods, namely, timber was valid. The facts of the case may be stated in some detail for proper appreciation of the dispute. The applicant is a registered partnership firm and a registered dealer within the meaning of the Bengal Finance (Sales Tax) Act (Bengal Act 6 of 1941). The applicant's case is that in due course it obtained two permits in form XXX for clearing 1425.350 cft of sawn Malaysian timber despatched by Shree Dayal Saw Mill from Vishakhapatnam by rail for delivery at Ultadanga. On January 13, 1989, the applicant produced the said two permits before the Inspector of Commercial Taxes of Ultadanga check -post. He did not clear the goods on the ground that the consignment was in excess of the quantity declared in the permits by 336 cft. He determined the excess quantity with reference to the actual weight of 587 quintals. The Inspector refused to accept the applicant's contention that sawn timber should be measured cubic feet -wise as per the trade practice and the procedure laid down by the Indian Standards Institution ("ISI", for short) and not by reference to weight. The applicant was asked by annexure "B" to obtain a permit for the excess quantity. Annexure "C" is the applicant's reply of January 18, 1989, in which he denied any excess quantity and requested that measurement should be taken cubic feet -wise instead of by way of conversion from weight. Thereafter the Inspector started taking cubic feet -wise measurement from end to end, while the applicant insisted on measurement in accordance with the alleged trade practice and procedures followed by railways and the ISI. Finally, the Assistant Commissioner of Commercial Taxes had to intervene and according to his instructions measurements were taken during the period from January 30, 1989 to February 15, 1989, both on end to end basis, as wanted by the Inspector, and upon taking into account the saps, knots, cracks and inconsistency in dimensions, etc., as wanted by the applicant. Those two sets of measurements are recorded in annexure "F", which shows that the timber was 1658.95 cft according to end to end measurement and 1423.76 cft according to the applicant's procedure. The difference still remained to the extent of 235.19 cft, as a result of which the timber was not released for non -production of permit to that extent. Hence this application.

(2.) SINCE the entire quantity of timber was being detained at Ultadanga railway yard, we, by an interim order dated March 14, 1989, directed conditional release thereof. We are informed that the goods have since been released.

(3.) THERE is no dispute that timber is a notified goods under Section 4A of the Bengal Finance (Sales Tax) Act, 1941. Permits are admittedly required for transportation of timber of such quantity from the notified places. Before arrival of the goods at Ultadanga railway station, which is a notified place, the applicant obtained from the concerned Commercial Tax Officer two permits in form XXX (annexure "A"). The quantities mentioned in those permits are - -715.350 cft and 710 cft respectively, making a total of 1425.350 cft.