JUDGMENT
P.K. Ganguly, Member (J)
1. The application in RN-10 of 2001 along with applications in RN-11 of 2001 and 12 of 2001 has been filed under Section 8 of the West Bengal Taxation Tribunal Act, 1987 wherein seizure of goods by respondent No. 1 on December 25, 2000 has been challenged and prayer has been made for quashing the said seizure.
2. The applicant is the driver of the vehicle ORO-5D/3286, the owner of which is one Ishrafil Mhd. of Raipur, Cuttack, and the said vehicle was hired by Goldstar Roadways–a transport company of Orissa for carrying in total 6,968 pieces of cow-hide and goat skin from Cuttack to be delivered to three different consignees in Calcutta. The consignor in RN-10 is Nijamuddin of Oriyabazar, Cuttack, and the consignee is Oxford Tanners of Calcutta-19 and the said consignment is in respect of 5,250 pieces of goat skin and the consignment number is 127, dated December 9, 2000. The consignor in RN-11 is one Miraj Ahmd. of Oriyabazar, Cuttack, and the consignee is P.T. Impex of Calcutta and the consignment number is 257, dated October 28, 2000 and the same relates to 1,178 pieces of cow-hide. In RN-12 consignor is one Rahamatullah of Oriyabazar, Cuttack, and the consignee is Kaycee Trading, Calcutta and the consignment number is 270, dated October 27, 2000 and it relates to 540 pieces of cow-hide. The petitioner-driver along with the said goods reached from Cuttack to Chichira outpost for entering in West Bengal. The driver produced for checking, all the documents including way bills which were found to be in order and the check-post authorities duly endorsed the way bills and supplied one copy of the same to the driver and vehicle was allowed to move. As the vehicle reached Kharagpur proceeding along National Highway No. 6, it was intercepted by C.T.O., Kharagpur range (respondent No. 1) who detained the said vehicle after serving written detention order, dated December 23, 2000. All papers and documents including the driver’s licence were taken by respondent No. 1 for verification. Despite repeated request for speedy verification, as late on January 1, 2001, the petitioner was informed that the consigned goods have been seized on December 25, 2000 on the ground that the documents bore no endorsement of the authorities of Jamsolghat check-post, though the vehicle passed through the said check-post and that the consignors were found not to be registered dealers under the Orissa Sales Tax Act. A copy of the seizure list dated December 25, 2000 was handed over to the petitioner on January 1, 2001. Moreover, in the seizure report there is endorsement of the C.T.O. that the seized goods had been kept in the custody of the driver on his verbal request. The seizure report is dated December 25, 2000, but the petitioner was shown the same on January 1, 2001. It is the contention of the petitioner that the aforesaid seizure of goods dated December 25, 2000 and detention of the vehicle are illegal, arbitrary, mala fide and motivated and as such same requires to be set aside.
3. In the affidavit-in-opposition the existence of the transport company, namely, Goldstar Roadways, has been doubted though the fact of presentation of the required documents before the Chichira check-post authorities and the allowing by the said authorities for further movement of the vehicle stand admitted. It has been contended that the vehicle had been detained at 5 p.m. on December 23, 2000 by respondent No. 1 for verifying documents which were taken from the petitioner-driver. But the driving licence was not taken. The driver-petitioner made himself scarce and appeared before him only as late as on January 1, 2001. So there was no scope to intimate him about the seizure. After detention, telephonic enquiry with Jamsolghat check-post authority revealed that the vehicle in question had not passed through that check-post either on December 22, 2000 or December 23, 2000. The driver having fled away the matter could not, be verified. A contact over phone was also made with the C.T.O., Cuttack-1 and the respondent No. 1 came to know that the consignor is not a registered dealer there. So, consignor being false, the invoice, consignment note, etc., cannot also, but be false. On receipt of such telephonic report the respondent was satisfied that there has been contravention in the matter of complying with the formalities as enjoined in Rule 212(9) and 212(10)(b) of the West Bengal Sales Tax Rules, 1995. Then the goods were seized on December 25, 2000 and a seizure report in presence of a witness was made on December 25, 2000 as the driver fled away. It was only on January 1, 2001 the driver appeared. The requirement of handing over the seizure list to him became fruitful only on that date. The goods were given in safe custody of the driver as he opted to be custodian of the goods. As a matter of fact every document had been kept by the respondent after seizure. Therefore, it is contended that the seizure in this case has been lawfully made and the application should be dismissed.
4. Only question for consideration is whether the seizure dated December 25, 2000 is lawful or not.
5. The legal position is that before ordering seizure of goods, the authority must have to be satisfied on verification that the transportation of goods was being done in contravention of provision of the statute relating to the movement of goods. The condition precedent to the seizure must be such as to justify the subsequent seizure but the revenue cannot be allowed to make groping enquiries after seizure to justify the seizure. In this case admittedly the detention order, annexure A, to the application was passed by respondent No. 1 on December 23, 2000 at 5 p.m. The detention order shows that the relevant documents in respect of the consignment were taken charge of by the respondent No. 1 and the goods were kept in the safe custody of the applicant-driver on his verbal request. The order on December 25, 2000 of seizure is annexure B to the application on the reverse side of which is seizure memo dated December 25, 2000 where there is signature of the petitioner in Hindi and that signature is dated January 1, 2001. The report of seizure made prior to the seizure bearing signature of one witness Panchanan Ghosh is annexure A to the affidavit-in-opposition. In the annexure A dated December 25, 2000, it is written that since the driver or any representative of the driver is not available, the contents of the report are explained to that witness. Thereafter, as per noting therein, the Commercial Tax Officer proceeded to seize the goods under Section 70 of the Act of 1994. But in the seizure receipt, annexure B to the main application, after giving the grounds of seizure, it is noted that the goods seized are kept under the custody of the driver on his verbal request and the signature below in Hindi of the driver is dated January 1, 2001. In view of such noting, learned lawyer for the petitioner submits that if the driver-petitioner made himself scarce after December 23, 2000 up to December 31, 2000, how could the driver request the respondent No. 1 on December 25, 2000 to allow him to keep custody of the seized goods ? These two statements being contradictory and mutually exclusive go to show that the story of running away of the driver after December 23, 2000 and his alleged absence till December 31, 2000 cannot but be false and the same has been incorporated to cover up the illegal seizure which was actually made on January 1, 2001. But as we peruse annexure A to the affidavit-in-opposition which is report of seizure, we find that after recording the grounds for seizure the officer was about to make seizure or proceeded for the act of preparing the seizure receipt which is annexure B to the application. While annexure B was being prepared, the driver even at that time didn’t appear and as such the signature of the driver on that paper annexure B is dated January 1, 2001. At the time of detention, the goods were kept in the safe custody of the driver on his verbal request as it appears from annexure A to the application. The said language is there in annexure B and that was written in the absence of the driver. The applicant failed to file anything before us showing his presence there between the period December 24, 2000 to December 31, 2000. Moreover, the learned advocate at the time of hearing conceded that the seized goods were in the custody of the respondent No. 1 after the seizure. That is the reason for which the petitioner had to file petition here for release of the goods which prayer was allowed on furnishing cash security as per order dated January 1, 2001. So, the submission of the learned lawyer that the seizure was made not on December 25, 2000 but on January 1, 2001, does not hold water. His next argument assailing seizure is to the effect that the detention was made at 5 p.m. on December 23, 2000, which was Saturday ; 24th December was Sunday and 25th was holiday. So the story that has been made out regarding telephonic conversation and knowledge acquired through telephonic conversation with C.T.O., Cuttack cannot but be false. It is the argument that even if some information had been received by the respondent No. 1 that must be anytime after December 25, 2000, that is, after the date of seizure and as such the seizure must be bad under the law, since there was no material then as required under Section 70(1) of the Act. But we are unable to accept that argument. The official acts of contacting over phone must be presumed to have been done within the time as stated before the seizure. Otherwise, there could not have been reflection about gathering of such knowledge over phone either in annexure A to the affidavit-in-opposition or annexure B to the application both dated December 25, 2000. So, we hold that the procedural aspect of the seizure as made has been complied with in accordance with law. All the enquiries leading to the alleged reasonable belief concerning transgression of the rules regarding movement of goods have been made prima facie prior to the seizure.
6. The main ground for seizure as appears is that the consignor is not a registered dealer at Oriyabazar, Cuttack, under Cuttack circle as per the information gathered over phone from the C.T.O., Cuttack. So, the respondent No. 1 came to the conclusion that the entire bill concerning the goods consigned to the consignee must be false and fraudulent one and the way bill though found due endorsement by check-post authority at Chichira cannot be of any help since provisions of Rule 212 read with Section 68 of the Act having been contravened, the respondent No. 1 had to seize the goods under Section 70 of the West Bengal Sales Tax Act. It is contended by the learned State Representative that Rule 212(9) of the West Bengal Sales Tax Rules, 1995 empowers C.T.O. to verify the correctness of the documents of way bill. On scrutiny and after being enlightened over the phone that the consignor is not registered dealer in the address stated in the bill, the entire document is fit to be declared as false or incorrect and the entries therein must be false or incorrect as per Sub-rule (10)(b) of Rule 212 of the West Bengal Sales Tax Rules, 1995. As such the seizure is lawful. As per amended Sub-rule (9) of Rule 212, the Commercial Tax Officer may verify correctness of the way bill and other documents relating to the consignment of goods being transported in respect of description, quantity, weight or value of such consignment of goods. Amended Sub-rule (10) of Rule 212 enjoining—“Where upon verification made under Sub-rule (9), and on searching the vehicle or opening the container or packages, if necessary–
(a) the description, quantity, weight or value of the goods in any consignment is found by the authority referred to in Sub-rule (9) to be at variance with the description, quantity, weight or value of goods disclosed in the way bill ; or
(b) the documents presented in respect of goods in any consignment is found by the authority referred to in Sub-rule (9) to be false or incorrect, either in respect of the description, quantity or weight of such consignment of goods, or the value thereof, or
(c) the consignor or consignee of the consignment of goods is shown to be a dealer registered under the Act, while the records available in the office of the appropriate assessing authority do not show the existence of such a dealer,
such authority shall prepare a report in the presence of the driver or person in-charge of the vehicle and get such report countersigned by him, or where the driver or person in-charge of the vehicle is not available for any reason, such authority shall prepare a report in the presence of one witness after explaining to him the contents of the report and get the report countersigned by him, and shall thereafter seize the consignment of goods under Section 70 for contravention of the provisions Section 68.”
Learned State Representative submits that when there is no existence of the consignor as a registered dealer as- revealed over telephonic conversation which is supported by annexure B dated January 9, 2001 to the affidavit-in-opposition, which is letter by Assistant Commissioner, Commercial Tax, Cuttack-1 Range, entire document becomes null and void–the same being false and accordingly it hits Sub-rule (10)(b) of Rule 212 as amended. But we are unable to agree with the said submission. The condition laid down in the rule is that where after verification the documents presented are found to be false or incorrect in respect of description, quantity, weight or value only then the goods may be seized. In the report of the respondent it has not been mentioned that falsity or incorrectness is in respect of description, quantity, weight or value of the goods as noted in the documents. There is nothing in the report proceeding the seizure or even after the seizure that refers to falsity or incorrectness about the description, quantity, weight or value of the goods upon verification. Even sub-rue (10)(c) of Rule 212 is not attracted since it refers to consignor or consignee to be a dealer registered under “the Act” which obviously means under the West Bengal Sales Tax Act [Rule 2(r) of the Rules, 1995]. In the report before the seizure, it is only mentioned that the consignor is not a registered dealer under Cuttack-1 Range at the address given in the bill. The consignor may not be registered dealer under the Orissa Sales Tax Act. But for that the entire document cannot be opined to be false. There is nothing in the above Rule 212 for which the entire document or the whole entries in the document can be declared to be false. There is no hint therein for coming to such a conclusion. The rule simply lays down that when upon verification the documents are found to be false or incorrect in respect of description, quantity, weight or value, goods may be seized. But there has been admittedly no physical verification of the goods by respondent No. 1. Only an information gathered over phone led the C.T.O. to doubt that there has been contravention of provision of Section 68, but to our judgment there was no material before the C.T.O. for jumping to the conclusion that there had been violation of the statutory restrictions over the movements of goods. The information gathered over phone about the consignor being not a registered dealer at Cuttack, though mentioned as registered dealer in the document, cannot be deemed in law as a material whereupon respondent could have formed “the reason to believe” as required under Section 70(1) of the Act 1994 that the goods in question have been imported into West Bengal in contravention of Section 68 of the Act. In our considered view, in the context of the Rule 212, the material discovered by C.T.O.–can have no nexus with his formation of belief as made. So on the above ground, respondent No. 1 had no legal authority or justification to make the seizure as he has done.
7. The another ground for seizure is to the effect that the C.T.O. by talking over phone with the authorities at Jamsolghat check-post came to know that the vehicle with the load did not pass through that check-post. Whether a vehicle did pass through a certain check-post or not, in another State, before entering the jurisdiction of the State of West Bengal can at best be considered as a piece of evidence only for corroborating the required reasonable belief of the officer that the goods are being transported in contravention of the provisions of Section 68 of the Act. The same cannot in our considered view without anything else, be the sole ground for the required “reasonable belief. The legal provisions envisaged in the Rule 212 of the Rules 1995 as stood after amendment also do not appear to justify the same as the ground for detention and seizure. Moreover, we know that post-seizure information cannot justify the earlier seizure. But the same can be used for showing that the seizure was made bona fide on the basis of information on which officer might reasonably rely. Perhaps, keeping the same in mind the respondent filed annexure B the letter dated January 9, 2001 of Assistant Commissioner, Cuttack-1 Range which corroborates alleged telephonic information before seizure on the point of non-existence of the consignor as a registered dealer in the relevant address at Cuttack. But curiously enough there is no such corroboration by any letter about the information allegedly gathered over phone from the authorities at Jamsoleghat check-post. Had there been such conversation over phone the respondent would definitely have filed a corroborating letter like annexure B to prove the bona fide of the respondent. So, the two points raised for forming the reasonable belief for effecting the seizure have no legal basis to stand. Thus there had been no material in possession of the respondent whereupon the respondent could have formed reasons to believe that the goods in question have been imported into West Bengal violating the statutory restrictions on the movement of goods and that as such the seizure made must be declared to be invalid and the order seizing the goods is liable to be quashed.
8. The application thus succeeds, we hold that the seizure of the goods made by respondent No. 1 by order dated December 25, 2000 was illegal and the same as such is quashed. The seized goods have already been ordered to be released on furnishing security. The security so furnished be released forthwith. Parties do bear their respective costs.
This order also covers RN-11 of 2001 and RN-12 of 2001.
D. Bhattacharya, Member (J)
9. I agree.