JUDGMENT
P.K. Ganguly, Judicial Member
1. The petitioner here challenges the detention of 1771 pieces of mobile phones packed in 13 carton boxes by the Assistant Commissioner, Commercial Taxes, Howrah Range, under Section 80 of the West Bengal Value Added Tax Act, 2003 and the order dated May 18, 2005 by the said officer imposing penalty for alleged violation of Section 80 of the said Act.
2. The contention of the petitioner is that the petitioner carries on business as transporter as well as courier. In the course of business, the petitioner-transporter was engaged by M/s. Ingram Micro India (P) Ltd., Navi Mumbai, for transporting 1771 pieces of mobile phones to their another business place at Bhubaneswar. The petitioner prepared air way bill on the basis of the invoices which were handed over by the said consignor at Mumbai. The said air way bill contains the invoice number of the consignor and the number of packages containing 1771 pieces of mobile phones. The State of West Bengal was used as a corridor for the purpose of the said transportation by the petitioner’s own aircraft. The above transported goods thus reached Kolkata Air Port (N. S. C. Bose) on May 10, 2005. The petitioner then submitted a declaration as required under Section 80 of the said Act and the Commercial Tax Officer of the Air Port Check-post after being satisfied about the documents, duly endorsed the declaration along with invoices and air way bill and the petitioner brought the goods along with the documents to Howrah Station for transportation of the same to Bhubaneswar. As the declaration that was submitted there mentioned the goods as computer software, but the actual goods that were transported were mobile phones, respondent No. 1, Assistant Commissioner, Commercial Taxes, Howrah Range, could not be persuaded to hold that there was a mistake in describing the goods at the entry point at Dum Air Port by the petitioner and for such technical mistake, the petitioner should not be made to suffer. The respondent No. 1 did not pay any heed to the said argument, detained the goods and issued show cause notice as to why penalty under Section 80 of the VAT Act shall not be imposed. Ultimately on May 18, 2005, he imposed penalty of Rs. 27,93,792 as per the valuation declared by the petitioner in the document produced though not relied upon by the respondent No. 1. The contention of the petitioner is that the order was passed mechanically without application of mind and the technical mistake that took place in describing the goods at the time of making the declaration in the first check-post should have been allowed to be rectified since all other documents were in order. Hence, this prayer.
3. The respondent filed A.O. and the contention of the respondent is that the declaration as made before the Sales Tax Officer, Air Port Check-post mentioned the goods as computer software but the goods which were ultimately found were mobile phone sets at the time of interception at the last check-post at Howrah Railway Station. 1771 pieces of mobile sets were found but the petitioner failed to produce requisite document at the Howrah Station. The invoice number of the mobile phone set was mentioned in the transit declaration which was issued to the petitioner to carry computer software, not mobile phone sets. The petitioner thus used unfair means to carry such goods for which no transit declaration was issued. The petitioner obviously violated the provisions of the VAT Act as the petitioner carried mobile phone sets in place of computer software which was mentioned in the transit declaration. Computer software is a totally different commodity from a mobile phone and there is hardly any chance of being confused over that. Only when a person has ill-motive, he would like to think that mobile phone and computer software are one and the same thing. The petitioner-transporter was rightly prevented from transporting such goods outside West Bengal with the help of a wrong declaration. It was not a technical mistake but an intentional act attracting penalty as such for such violation. So, the order of penalty was rightly passed and the petition is liable to be rejected.
4. The petitioner used affidavit-in-reply where all the facts mentioned in the application were reiterated. It was the respondent’s legal duty to read the entire documents as a whole and if the respondent would have done it, he would have appreciated that the fault was as a result of clerical mistake in describing the goods. There can be no question of taking unfair means since rate of tax on both the goods mobile phone and computer is same. So, it is contended that the petitioner is entitled to get the relief.
5. The only point for consideration is whether the order of detention and the order of penalty has been rightly and lawfully passed by the respondent.
6. Admittedly, it is a case of transportation of goods coming under regulatory measures prescribed in Section 80 of the West Bengal Value Added Tax Act, 2003 read with Rules 121 to 124 of the West Bengal Value Added Tax Rules, 2005. Admittedly, a declaration as per Rule 121 is required to be made on the body of the consignment note or on a document of like nature in the form appended to Rule 121. As per Sub-rule (2) of Rule 121, such declaration shall be produced along with a copy of invoice, consignment note or delivery note before the concerned officer at the first check-post. The first check-post authority, as per Rule 122, shall countersign the declaration as produced before him in respect of the goods being transported and the said declaration and other documents shall be returned to the transporter after recording in the register the particulars given in the consignment note or in the document of like nature and in the declaration contained therein. Though Rule 122 does not specifically speak about physical verification of the goods in the first check-post, Rule 123 mandates that the countersigned declaration on being produced before the authority in the last check-post, such authority shall verify the goods being transported in the goods vehicle with those specified in such declaration. If after search of the vehicle as per Sub-section (6) of Section 80, the officer is satisfied for reasons to be recorded in writing that the transporter has contravened the provisions of this section, he may after giving the transporter a reasonable opportunity of being heard, impose by an order to be passed in the prescribed manner such penalty not exceeding 25 per cent of the market value of the goods so transported as may be determined by him in accordance with the rule made under this Act. The manner of imposition of penalty for transporting goods in contravention of the provision of Section 80 is to be found in Rule 128 of the West Bengal Value Added Tax Rules, 2005. The amount of penalty may be determined on the basis of the available copy of the invoice, consignment note or delivery note issued by the consignor which has been carried by the transporter and such like evidence as has been produced and also taking into account the detailed price of such goods that may fetch on sale in West Bengal.
7. It may be recalled that in this case, the petitioner-transporter failed to satisfy the authority at the last check-post, i.e., at the Howrah Station, as the declaration that was produced did not tally with the goods carried which were mobile phone sets of 1771 pieces though the transit declaration was for carriage of computer software. Learned advocate for the petitioner likes to stress that this mistake came up as in the first check-post, i.e., Dum Air Port Check-post, the goods were erroneously described as computer software in place of the actual, i.e., the mobile phone sets. He says that this error is apparent since the invoice No. 425000269 finds due mention in the annexure “A” (Page Nos. 11 to 13), (the delivery challans) as well as in the air way bill (annexure “A” Page No. 14). He submits that in the invoice and air way bills, the goods have been properly described as mobile phone sets and in the declaration also, invoice number and air way bill numbers were duly mentioned. So, he submits that this is a technical mistake committed by the petitioner in describing the goods at the first check-post. The authority at the last check-post without looking into the fact-situation as well as the documents as a whole, gave much stress on the slight technical mistake, and detained the goods and imposed the penalty which as such cannot be sustained. In this connection, he refers to a ruling reported in Commissioner, Sales Tax, U.P., Lucknow v. Green Carriers & Contractors, Delhi Pvt. Ltd. [1999] 115 STC 91 (All) and decision of this Tribunal reported in Shiv Narayan Sharma v. A.C.C.T., Central Section [2005] 46 STA 76.
8. In the said ruling of the Allahabad High Court, it was held that levy of penalty on the transporter was not justified for mere clerical error in describing the goods. That ruling was rendered while analysing Section 15-A(1)(o) of the U. P. Sales Tax Act, 1948. Upon facts of that case, the court held that Section 15-A(1)(o) of the U. P. Sales Tax Act, 1948 could not, in the circumstances of that case, be invoked. We do not know as to what is the provision of the U. P. Sales Tax Act, 1948. The goods were also either hosiery goods or simple cloth but here, in the instant case, the goods are of different variety altogether–one is mobile phone and other is computer software. So, the principle of the ruling is not applicable in the facts and circumstances of this case. In the case decided by this Tribunal, the petitioner after reaching the destination himself brought to the notice of the sales tax authority here that the transporter forgot to get the declaration endorsed at the last check-post in West Bengal due to ignorance of the driver and the consignment was not admittedly sold in West Bengal and reached the destination in Mumbai. The Tribunal in such circumstances directed the authority imposing penalty to rehear the petitioner and to pass a fresh order imposing a token amount of penalty. That is not of course the instant case here.
9. The petitioner produced invoice and other documents where 1771 pieces of mobile phone sets were mentioned but the transit declaration which was given was for computer software and not mobile phone sets. The petitioner has not produced the concerned invoice here. Instead, he filed delivery challan and one air way bill. Though the invoice No. 425000269 is mentioned in both the documents but the absence of the invoice before us and description of the goods as to be found in the delivery challan make it difficult for us to hold that the said document refers to 1771 number of mobile phones. In other words, the delivery challans pages 11 to 13 (annexure “A” cannot stand for 1771 number of mobile phone sets. We are, as such, unable to hold that there was only a mistake committed by the petitioner at the time of getting the declaration endorsed in the first check-post by misdescribing the goods. We are not, accordingly convinced with the argument advanced by the learned advocate for the petitioner that the declaration given as computer software was a result of typographical mistake. So, we are not impressed when the learned advocate for the petitioner submits that the authorities at the last check-post at Howrah Station should have allowed the petitioner to rectify the said mistake without imposing penalty.
10. Regard being had to the facts and circumstances of the case and the provision of law in such type of transportation where West Bengal is used as corridor mandating scrutiny and verification of the goods with the document at the last check-post in West Bengal, we hold that the concerned authority’s act of detention and imposition of penalty cannot but be sustained.
11. The application, therefore, fails. The petitioner is not entitled to get the relief prayed for. The application is dismissed without any order as to costs.
12. The judgment is ready and delivered in open court and kept in separate sheets along with the record of this case.
13. After delivery of this judgment, the learned advocate for the petitioner prays for staying of the operation of the order and for restraining the respondents from encashing the bank guarantee. The learned State Representative vehemently objects to the said prayer. We have considered the submissions of both the sides. We are not in favour of granting of stay. Accordingly, the prayer for stay stands rejected.
B.K. Majumdar, Technical Member
14. I agree.