P.K. Ganguly, Judicial Member

1. This is an application under Section 8 of the West Bengal Taxation Tribunal Act, 1987 challenging the order of seizure made by respondent No. 1-Commercial Tax Officer, Sealdah Charge on December 8, 1999 and the orders dated December 20, 1999, January 31, 2000 and April 28, 2000 passed by respondents Nos. 1, 2 and 3 respectively in the penalty proceeding with a prayer for setting aside both the seizure and imposition of penalty.

The case of the petitioner is that petitioner Afzal Karim is a dealer registered under the West Bengal Sales Tax Act, 1994 and he acts as a commission agent dealing in hide (declared goods under Section 14 of the Central Sales Tax Act, 1956). The petitioner imports hide all along on production of permit previously and on production of way-bills subsequently as per law obtained from respondent No. 1, On December 8, 1999, respondent No. 1, Commercial Tax Officer, Sealdah Charge, along with some officers of the department visited godown of the petitioner at 297/1 A.P.C. Road, Calcutta, in the morning and demanded books of account and other documents. The available books including stock books and stock purchase voucher, etc., were shown by the petitioner. Without actual counting, the officer noted as if there has been only physical stock in that godown of 1,214 pieces (1,074 large size and 140 medium size) hides and skins, though actually at that time there had been in total 2,869 pieces of hides and skins in that godown. In order to make a case favourable for them, respondent No. 1, Commercial Tax Officer, Sealdah Charge, recorded wrongly in the name of the petitioner showing as if the petitioner has stated that the goods in the godown had been imported from Bodra, Gujarat, without permit though actually no such statement was ever made by him. The petitioner has been acting as an agent and as such the petitioner does not make purchase from the principal on whose behalf the petitioner sells the goods. The petitioners statement that there can be no evidence of purchase as such from the principal was not given any weight. It is also not true that books of account, documents, etc., were produced only on December 9, 1999 and not on the date of seizure. Despite production before respondent No. 1 of entire evidence including permit, invoice, consignment note of the imported goods, connected records received from the local principal and the stock book bearing entry of the same, quite unreasonably, seizure was made and penalty was imposed. Due to obnoxious smell, it was not possible for the officers to physically count the hide and skin stacked. Whimsically without counting, the number was noted. Mention has, also been made in the application to some of the observation made by respondent No. 1 which do not find support from the entries in the document. Seizure as such having been made not on the basis of any cogent material and the penalty imposed having been arbitrarily made, this application with the aforesaid relief has been filed.

2. The contention of the respondent is that the physical counting of the actual stock of pieces of hide in the godown was made with the co-operation and assistance of Md. Afzal Karim, the representative partner who failed to produce any purchase bill or way-bill in connection with the 1,214 pieces of hide. Md. Afzal Karim has stated categorically about the import of those from Bodra, Gujarat. The stock book was not demanded on that date. In the pre-seizure report made by respondent No. 1 all the above have been recorded. The accountant Firdaus Alam failed to turn up despite waiting for reasonable period. The petitioner having failed to show any paper in support of such import, goods were found to have been imported in contravention of Section 68 and hence the seizure as made is lawful. No objection was raised and the petitioner duly signed in the seizure report. He has thereafter come up with conflicting statements only to mislead. The petitioners subsequent contention that hides imported in 1998-99 were preserved up to December 8, 1999 (date of seizure) and that those were not that much perishable has been belied by the expert report on which the petitioner seeks to rely. Documents are well enough to hold out and prove that the entire quantity of import made in 1998-99 had already been exhausted and therefore goods that have been seized are goods which are imported without permit and without relevant documents and that as such the seizure and the penalty imposed are lawful. The penalty amount of Rs. 3,75,000 imposed by respondent No. 1 having been reduced by the Assistant Commissioner to Rs. 2,28,000 and the same having been further reduced to an amount of Rs. 1,75,000 by the Deputy Commissioner, the same cannot also be held to be unreasonable or unlawful.

3. In this case the petitioner used affidavit-in-reply to highlight among others the improbability of doing physical counting work of obnoxious-smelling cow and ox hide pieces by two Bengali Hindu Brahmins, two Bengali Hindu lady officers and other two Bengali Hindu gentlemen only to perform their duty-an official one. It has been also mentioned that the petitioners signature in Urdu in the seizure report without there being any endorsement of reading out the contents of the report cannot give sanctity to the document-as claimed. Petitioners alleged acknowledgement as per that report regarding importation from Bodra without permit and his alleged failure to show any document mentioned in the report of respondent No. 1 as such cannot but be taken with a grain of salt. The petitioner has also given elaborately here as well as in the application, the details of entry in the stock register to show that the same tallied with the other records produced by the petitioner before the respondent No. 1. The finding of fact arrived at being thus mostly perverse and irrational, this application with the aforesaid relief prayed should be allowed.

4. The only points that require consideration are :

Is the order of seizure legal and valid

Is the order imposing penalty lawful

5. The petitioner, as we see, once before moved this Tribunal by filing application registered as RN-23 of 2000 over the self-same matter. That application was disposed of by directing to move at first the appropriate revisional forum and by passing an order of release of the goods on some conditions set forth therein. It may be mentioned at the outset that in the cause title, there are two respondents namely,-(1) Commercial Tax Officer, Sealdah Charge and (2) Deputy Commissioner, Commercial Taxes, West Bengal, at 14, Beliaghata Road, though relief against orders of three respondents has been claimed. It appears from the contents of the application that order of Assistant Commissioner in the penalty proceeding has also been challenged but the Assistant Commissioner has not been arrayed as one of the respondents here. Moreover, scrutiny of the prayer portion of the application further reveals that the petitioner has challenged also the order dated January 31, 2000 but as we look to the annexures, we find that the order, dated January 31, 2000 was passed by this Tribunal in RN-23 of 2000. It further appears that Assistant Commissioner passed his order on February 29, 2000 but no prayer challenging that particular order has been made. Moreover, Assistant Commissioner as we have stated earlier has not also been shown as a party respondent. This has led to anomalous position and this formal defect in the application which cannot go unnoticed cannot also be lightly over-looked.

6. Perusal of the pre-seizure report dated December 8, 1999 shows that on information that Schedule IV goods like hides and skins have been imported in contravention of the provisions of Section 68 and have been kept at the dealers place of business-cum-godown at 297/1 A.P.C. Road, Calcutta, the respondent No. 1 with some other officers mentioned therein visited the dealer-petitioners godown-cum-place of business on December 8, 1999 at 11.45 a.m. to workout the same. They found substantial amount of hides and skins which on physical counting came up to 1,074 large size and 140 medium size hides and skins pieces totaling 1,214 pieces valued at 13 lakhs of rupees approximately. Afzal Karim, partner and petitioner here and another Md. Salim stated to be a relative of that partner who were present there stated that the goods have been imported from Bodra, Gujarat. The partner failed to produce purchase bills or way-bills in support of the goods found. He stated that those documents are with Firdaus Alam - firms accountant. Even after waiting for half an hour when none turned up with papers and documents demanded, the respondent No. 1 proceeded to seize the goods and prepared a seizure receipt in respect of 1,214 pieces of hides after directing Afzal Karim - the petitioner to meet with papers and documents -and after making him custodian of the seized goods.

7. Power has been given under Section 69(b) of the West Bengal Sales Tax Act, 1994 to search any godown, warehouse or any other place in which any goods transported in contravention of Section 68 are suspected to be stored. If no disclosure regarding stock of goods found is made and when satisfied that the stored goods have been transported in contravention of Section 68, the same may be seized. Here that jurisdiction of respondent No. 1 to search has not been challenged. It is only stated that there was no contravention of the provisions of Section 68 of thesince all papers and documents relevant for the purpose had been shown. It is further stated that no such statement regarding import of the goods from Bodra, Gujarat has been given by him to respondent No. 1. It is also stated that no physical counting was done and it is not possible for any such Government office to count piece after piece the stock of hides which have been giving out foul smell. It is stated that physical stock in the godown was more than what has been written. Stock book entry position would reveal that. Mention also has been made about the cutting and over-writing in the impugned report. Petitioners knowledge of the contents of the report cannot be imputed simply from the existence of his signature in Urdu without any endorsement of reading over the contents of that document to petitioner by respondent No. 1. A dealer failing to produce any document in respect of the store is liable under Section 62 read with Sub-section (2) of Section 65 also, for penal action simultaneously. Absence of any such penal action, as per learned advocate for the petitioner, in this case, would indirectly show that some papers at least must have been produced on the date of seizure. The bone of contention of the petitioner is that documents were well enough in this case. So much so that the respondent No. 1 had no other alternative but to take shelter under the Bodra-import story, which is a fiction created by respondent No. 1 and planted on the petitioners mouth. It appears that the petitioners contention is that books of account, stock register, etc., tally with each other and hold out well enough that actual stock of goods in the godown relates to import of the same made in the past year and that those were shown on the very date of visit of respondent No. 1. On the other hand, the respondent contends that no documents were shown and subsequently, that is, after December 9, 1999, the documents which were shown or filed are mostly not genuine so far as the local sale or purchase claim as made is concerned. Nor these prove that the actual stock of the hide and skin in the godown related to import of the previous year. The stock found in the godown was physically counted as per the respondent - though the same is denied by the petitioner.

8. These are questions of fact and we find three fact-finding authorities have rendered a decision concurrently proving the discrepancy in the documents produced later. In such a case unless the finding is proved to the hilt by the petitioner to be perverse, this Tribunal sitting as a writ court cannot interfere. We are not in a position to accede to the submission of the learned advocate for the petitioner that no reliance should be placed on the seizure report since that has been subsequently improved. The cutting and overwriting in some portion therein made him to submit the above. On a perusal of the said report we find the same has been written in one sitting and the cutting and over-writing made are not at all unnatural.

9. The entry in the xerox copy of the stock register (page 4 of the annexure) shows stock of the cow hide on June 10, 1999 was 2,399, but unfortunately there is no entry thereafter in the said stock register though the petitioner claims that on December 8, 1999 the stock was 2,869. The learned advocate for the petitioner wanted to give explanation by saying that the petitioner is a commission agent and as such all the new arrivals are not entered. We do not find the explanation as convincing one. To assail the seizure, learned advocate for the petitioner submits that there has been reduction of penalty amount at each stage and the said fact indirectly goes to show that the seizure made is not as per law. The officers would not have so reacted, had the case stood on firm legal footing. But such argument assailing the seizure does not inspire our confidence. Moreover, physical verification of the stock was done by the respondent No. 1 in presence of his colleagues as well as in presence of the managing partner (the petitioner) who is a very conversant person as regards his business. He assisted in the matter of counting the numbers physically. The argument of impossibility of counting because of the emission of bad smell also does not appear to be acceptable. On perusal of the document which is a report of Deputy Director and STC of Central Leather Research Institute appearing at page 22 of the annexure, it appears that raw hide and skin of cow, buffalo, etc., can be preserved for 30-45 days by applying salt and preservative, etc., and by using specified chemical, sometimes can be preserved, for one year, under specific weather condition. This certificate does not support in full the claim of the petitioner that the hide and skin pieces found in the godown were of earlier period-that is imported more than one year before December 8, 1999. On the contrary this also to a great extent support the case of the respondent that the hides and skins found were not of earlier acquisition since those are liable to be perished. In the context the statement of import from Bodra as made by the petitioner as to be found in the seizure report becomes very much relevant. We do not find anything to disbelieve that the petitioner did not submit any document relating to the import from Bodra to the concerned officer respondent No. 1-who has admittedly no enmity with the petitioner. We also find nothing to disagree with the allegation that the petitioner failed to show any document initially and some documents which were filed later, failed to inspire confidence for the reasons mentioned in the orders of the fact-finding authorities. Moreover, the petitioner was found, by the fact-finding authorities on perusal of the documents submitted, to indulge himself in alleged local purchase, local sale, etc., of hide and skin by manufacturing documents. The fact-finding authorities duly considered the purchase account, sales account, sales statement, sale bill, etc., of the petitioner for the year 1998-99 and came to a finding that goods seized are all imported goods without permit and these are not goods imported more than a year before and kept in stock as claimed by the petitioner. Taking an over-all view of the entire gamut of the case mainly concerning facts and very few about law, we find that the finding of fact of the three fact-finding authorities is not tainted with malice or perversity. In view of the same we do not think that any interference with the same is called for or needed. We hold that the order of seizure and the penalty order have been rightly and lawfully passed. The quantum of penalty has already been reduced by the Deputy Commissioner. The petitioner does not appear to have any submission to make over the amount of penalty ultimately imposed by the Deputy Commissioner. No document challenging the market value of the goods has been submitted. So the amount of penalty as ultimately imposed in revision by the respondent Deputy Commissioner is upheld. Both the issues therefore are decided against the petitioner and in favour of the respondents.

10. We therefore hold that the order of seizure as well as penalty is valid and lawful and accordingly application should be dismissed. It is ordered that the application be and the same is dismissed on contest. Parties do bear their respective costs.

Cash if deposited as per order dated January 31, 2000 in RN-23/ 2000 be adjusted against the penalty amount and the bank guarantee if furnished be invoked for the balance of amount.

A. Deb, Technical Member

11. I agree.