JUDGMENT B. C. CHAKRABARTI (Chairman). - The parties are the same in all the three cases and the points involved are identical. Even though RN-2 of 1989 was heard a few days earlier, we thought it advisable to defer delivery of judgment in that case so that all the points involved in the three cases could be covered by a common judgment. This judgment shall govern all the three cases. 2. RN-2 of 1989 is directed against an ex parte order of assessment for the four quarters ending July 31, 1979. RN-20 of 1989 relates to the ex parte assessment for the four quarters ending July 31, 1978 and RN-105 of 1989 relates to the ex parte assessment of four quarters ending July 31, 1980. The applicants have also challenged the subsequent proceedings following the ex parte order of assessment. 3. The case of the applicant may be briefly put as follows : The applicant is a manufacturer and exporter of finished leather having its main office at Madras and a branch office at Calcutta - formerly at 16, Topsia Second Lane and now at 23, Topsia Second Lane. The applicant used to procure goat skin through the branch office at Calcutta, process the same as semi-finished goat skin and transfer the same as stock-in-trade to the main office at Madras. The applicant was registered as a dealer both under the Bengal Finance (Sales Tax) Act, 1941 (hereinafter called "the BFST Act") as well as under the Central Sales Tax Act, 1956, sometime in July, 1975. 4. During the relevant period the manufacturing business of the applicant was running at a heavy loss. The branch office at Calcutta was suspended from the last part of the year 1983. The employees did not attend office regularly and there was no co-operation from them due to default in the matter of payment of salaries and wages to them. The registration granted to the applicant was cancelled in July, 1985. In 1984, the applicant declared itself a sick unit and applied for nursing programme from the Madras branch of the Syndicate Bank. 5. During the period 1978-79, the applicant submitted its quarterly returns as nil, as there was no business transaction of procuring goat skin in the State of West Bengal. In 1984, the applicant declared itself a sick unit and applied for nursing programme from the Madras branch of the Syndicate Bank. 5. During the period 1978-79, the applicant submitted its quarterly returns as nil, as there was no business transaction of procuring goat skin in the State of West Bengal. On the last date Fixed for hearing of the assessment proceedings, that is, June 21, 1983, none appeared on behalf of the applicant and the Commercial Tax Officer completed the assessment ex parte to the best of his judgment. The applicant came to know of it when certificate proceedings were taken out and the applicant was directed to pay the certificate demand of Rs. 2,80,000. The applicant then caused an enquiry through his authorised employee and came to learn about the ex parte assessment made by the respondent No. 1 who estimated the gross turnover at Rs. 1 crore and treating the same as an inter-State trade, allowed exemption from payment of sales tax under section 5(2)(a)(v) of the BFST Act. The taxable balance thus came at nil. The respondent No. 1, however, proceeded to estimate the purchase price of goat skin at Rs. 70 lakhs and levied purchase tax at Rs. 2,80,000 calculated at the rate of 4 per cent. Allegedly, the estimate was based on surmises and conjectures without any materials whatsoever. 6. The applicant being not liable to pay tax under section 4(1), 4(2), 4(3) or 8(3) of the BFST Act, the levy of purchase tax under section 4(6) was unwarranted by law. 7. The respondent No. 1 acted in flagrant violation of the principles of natural justice in not giving the applicant a reasonable opportunity of being heard. The provision for imposition of purchase tax is ultra vires since it seeks to levy tax on the consignment of goods in the case of inter-State trade and commerce and, therefore, beyond the competence of the State Legislature. Finally, it is stated that a reasonable opportunity may be given to the applicant to represent its case before the respondent No. 1 after setting aside the assessment. 8. The case of the applicant in RN-105 of 1989 is substantially the same. In this case the purchase tax was assessed at Rs. 1 lakh by the order of the Commercial Tax Officer dated July 21, 1984. 8. The case of the applicant in RN-105 of 1989 is substantially the same. In this case the purchase tax was assessed at Rs. 1 lakh by the order of the Commercial Tax Officer dated July 21, 1984. The applicant claims to have known about the assessment when the certificate demand was served. 9. In RN-20 of 1989 also the case of the applicant is identical. In this case the demand was for a much higher sum. Against the order of assessment, however, the applicant filed an appeal and a petition for stay of realisation of the purported dues. On March 10, 1989, an officer from the Office of the Certificate Officer served a notice demanding Rs. 5,25,951.14. The applicant was not aware of the date of hearing of the appeal, no notice thereof having been served upon him. He could not, therefore, be present at the hearing of the appeal. However, on the applicant depositing Rs. 52,600 to show his bona fides, the Certificate Officer stayed the proceedings. 10. In all these cases the substantial prayer of the applicant is for reopening the assessments so that the applicant could properly represent his case before the Commercial Tax Officer. 11. All the cases are opposed both on questions of law and fact. It is further alleged that the applications are not maintainable being barred by limitation and also on the ground that remedial measures available to the applicant were not availed of before approaching this Tribunal. 12. In regard to RN-2 of 1989, it is particularly alleged that the disputed assessment proceedings were started on July 1, 1981. About nine adjournments were granted to the applicant for production of their books of accounts and other materials. The applicant having failed to comply, finally June 21, 1983, was fixed for hearing with due intimation to the applicant at his registered place of business. The registered notice was received but no steps having been taken, assessment was made on June 21, 1983. The applicant was duly served with the notice of demand in form VII on June 27, 1983. 13. In regard to RN-20 of 1989, the case of the respondent is that the assessment case was finally fixed for hearing on November 12, 1981, which fact was duly intimated to the applicant. The applicant was duly served with the notice of demand in form VII on June 27, 1983. 13. In regard to RN-20 of 1989, the case of the respondent is that the assessment case was finally fixed for hearing on November 12, 1981, which fact was duly intimated to the applicant. But there being no appearance on behalf of the applicant and there being no prayer for adjournment on his behalf, the Commercial Tax Officer proceeded to dispose of the matter to the best of his judgment. It is also the case of the respondent that the applicant preferred an appeal before the Assistant Commissioner of Commercial Taxes. The appeal having been presented prima fade beyond the period of limitation, a notice to show cause was issued on April 2, 1984. The notice having been returned unserved, a fresh notice was served by process-server and yet there was no appearance. Thereafter the appeal was rejected on the ground of limitation. 14. In regard to case No. RN-105 of 1989, the specific allegation of the respondent is that when after affording adequate opportunities the applicant failed to appear at the assessment proceedings, it had to be made ex parte. Notice of demand in form VII was issued in due course on July 23, 1984, but the same having been returned unserved, the demand notice was ultimately served on September 14, 1984, by process-server. The source of knowledge as to this assessment, as alleged by the respondent, it demonstrably incorrect. The respondent prayed for dismissal of all the three cases. 15. As regards the period of limitation urged on behalf of the respondent, it may be pointed out that the applicant in each case has indicated a dale of accrual of cause of action which is well within the period prescribed by section 8 of the West Bengal Taxation Tribunal Act, 1987. Although we have reasons to believe that the applicant had knowledge of the proceedings long before the relevant provisions of the Act came into force, but they have come within sixty days of the coming into force of this Act. They certainly could have filed writ applications under article 226 of the Constitution for which no period of limitation is prescribed. Relief under article 226 is after all a discretionary one; so is the relief contemplated under section 8(1) of the present Act. They certainly could have filed writ applications under article 226 of the Constitution for which no period of limitation is prescribed. Relief under article 226 is after all a discretionary one; so is the relief contemplated under section 8(1) of the present Act. Even though, we cannot throw out the applications summarily on the ground of limitation, we are certainly entitled to lake into account the fact of unconscionable delay when considering the bona fides of the claim. 16. Although elaborate statements were made in the applications challenging the vires of section 4(6) of the BFST Act, 1941, and the competence of the State Legislature to enact a provision like section 4(6), these points were not eventually pressed at the time of hearing. 17. Learned Advocates for the applicant, however, argued that in the facts of the case, purchase tax could not be levied in view of the fact that admittedly the applicant was found not liable for payment of any other tax. This plea necessarily makes it incumbent to closely examine the provisions of section 4(6) of the BFST Act. It reads as follows : "(6) Every dealer, who has become liable to pay tax under sub-section (1) or sub-section (2) or sub-section (4) of this section or sub-section (3) of section 8 and is registered under this Act, shall, in addition to the tax referred to therein, be also liable to pay tax under this Act on all his purchases from - (i) a dealer who is not registered under this Act, of goods other than gold, rice (oryza sativa L.) and wheat (Triticum vulgare, T. compactum, T. sphaerococcum, T. durum, T. aestivum L, T. dicoccum), intended for direct use in the manufacture in West Bengal of goods for sale, and of containers and other materials for the packing of goods so purchased or manufactured." 18. It was argued by both Mr. Roy Chaudhury and Mr. A. K. Chakraborty that the liability to pay purchase tax is limited to dealers who were liable under section 4(1), 4(2), 4(4) or 8(3) of the BFST Act and since the liability to pay sales tax was determined at nil, there could be no question of liability to pay purchase tax in so far as purchase tax is payable, if at all, in addition to the tax referred to in the foregoing sections. It is clear upon a reading of the section 4(6) that the liability to pay purchase tax is incurred when the conditions, namely, that the dealer has become liable to pay tax under section 4(1), 4(2), 4(4) or 8(3) of the BFST Act and the dealer is registered, are fulfilled. There are clear affirmations in the applications that the applicant sought voluntary registration and was in fact registered both under the BFST Act, 1941 and the Central Sales Tax Act, 1956. Sub-section (3) of section 8 provides that every dealer who has been registered upon application made under this section, shall, for so long as his registration remains in force, be liable to pay tax under the Act. This apart, there is also statutory liability under the charging section 4(2), no matter whether, after exemptions, any demand is made or not. 19. True that in respect of RN-2 of 1989 and RN-105 of 1989, there was no demand except for purchase tax. Therefore, it is argued that the purchase tax could be imposed in appropriate cases, but that it must have to be in addition to other tax liability. In other words, the contention is that if there is no tax payable on these counts, the claim for purchase tax must fail. To counter this contention it was argued on behalf of the respondent that the liability was there even though by reason of exemptions the demand for sales tax might be nil. In fact, the order of the Commercial Tax Officer in RN-2 of 1989 shows that the dealer's gross turnover for the year 1977-78 exceeded Rs. 50 lakhs. The dealer was thus liable to pay turnover tax under section 6B of the BFST Act, 1941, but since the dealer dealt in declared goods exclusively and all sales were effected in the course of inter-State trade, no tax under section 6B was payable. This does not, however, mean that there is no liability at all. All that the order indicates is that he was entitled to exemption for the total amount. Therefore, it is evident that the liability was there under the law even though in the peculiar circumstances no tax was demanded by the Commercial Tax Officer. 20. Admittedly, the purchase tax was levied in terms of section 4(6)(i). All that the order indicates is that he was entitled to exemption for the total amount. Therefore, it is evident that the liability was there under the law even though in the peculiar circumstances no tax was demanded by the Commercial Tax Officer. 20. Admittedly, the purchase tax was levied in terms of section 4(6)(i). It envisages purchases from a dealer, who is not registered, of goods intended for direct use in the manufacture in West Bengal of goods for sale. It was contended on behalf of the applicant that the purchase must be for the purpose of manufacture and sale both in West Bengal. It was argued on behalf of the applicant that what the applicant did was to procure raw goat skin, process them and turn them into semi-finished goods before transfer to their main office at Madras. Consequently, it is argued that mere processing of the raw skin does not amount to manufacture and that there was no sale thereof in West Bengal. The language of the section as quoted earlier does not indicate that the goods must be manufactured in West Bengal for sale in West Bengal. It was pointed out upon a reference to section 5(1)(bb) that the Legislature has carefully avoided the use of the expression "of sale in West Bengal" in section 4(6), whereas in section 5(1)(bb), the expression "for sale in West Bengal" has been used. The Legislature, therefore, clearly had in view the distinction between "manufacture in West Bengal of goods for sale" and "manufacture in West Bengal for sale in West Bengal" as used in section 5(1)(bb). We are in agreement with this part of the contention urged on behalf of the respondents. We hold that in order to come within the meaning of section 4(6)(i), it is not incumbent that the sale also must be in West Bengal as a necessary precondition. 21. Now the question is whether the conversion of raw hides and skins - precisely goat skin in this case - into semi-finished products by the use of chemicals and other processes amounts to manufacture or not. There is no dispute that this is done in West Bengal. There is also no dispute that the applicant got himself registered as a manufacturer. Mr. Roy Chaudhury referred to a decision in the case of Sudhir Ch. There is no dispute that this is done in West Bengal. There is also no dispute that the applicant got himself registered as a manufacturer. Mr. Roy Chaudhury referred to a decision in the case of Sudhir Ch. Mukherjee v. Additional Commissioner, Commercial Taxes reported in [1976] 37 STC 554 (Cal). There it has been held that the following ingredients are necessary to constitute manufacture, namely, "(a) there must be a change in substance and a different article must have emerged having a distinctive character and use from the raw material by the use of physical labour or by mechanical process; (b) the articles produced either by physical labour or by mechanical process should be on a large scale and should pass as a commercial commodity from hand to hand." Reference was also made to a decision in the case of Commissioner of Sales Tax v. Harbilas Rai and Sons [1968] 21 STC 17 (SC). There it has been held that the word "manufacture" has various aspects of meaning, and in the context of sales tax legislation if the goods to which some labour is applied remain essentially the same commercial article, it cannot be said that the Final product is the result of manufacture. In that case, the assessee bought pig bristles and what it exported for sale was also bristles. It could not, therefore, be said that the assessee manufactured pig bristles out of pig bristles. The basis for the decision was that what the assessee did, did not convert them into something essentially or commercially different. In the present case before us, the applicant's own admission is that he procured raw goat skin and that what he transported to Madras was not the same stuff. Before transportation he used chemicals and did some processing for converting the raw skin into semi-finished product. Therefore, what the assessee purchased and what it transported were essentially and commercially different commodities. 22. The expression "manufacture" has been defined in section 2(dd) of the BFST Act, 1941. This amendment came into force with effect from February 1, 1979. The definition reads as follows : "'Manufacture', with all its grammatical variations and cognate expressions, means producing, making, extracting any goods; but does not include such manufactures or manufacturing processes as may be prescribed." Up-till now, no prescription appears to have been made under this clause. This amendment came into force with effect from February 1, 1979. The definition reads as follows : "'Manufacture', with all its grammatical variations and cognate expressions, means producing, making, extracting any goods; but does not include such manufactures or manufacturing processes as may be prescribed." Up-till now, no prescription appears to have been made under this clause. The definition came into force with effect from February 1, 1979, which covers at least one of the cases in full and another in part. 23. In the case of Hajee Abdul Shukoor and Co. v. State of Madras [1964] 15 STC 719, the Supreme Court has observed that raw hides and skins and dressed hides and skins constitute different commodities or merchandise and they could, therefore, be treated as different goods for purposes of the Act. 24. Mr. Chakraborty, appearing for the applicant in RN-20 of 1989 and RN-105 of 1989, also referred to the decision reported in [1985] 60 STC 1 (SC) (Govinda Saran Ganga Saran v. Commissioner of Sales Tax). There the principal point decided was that the single point at which the tax may be imposed must be a definite ascertainable point so that both the dealer and the sales tax authorities may know for certain the point at which the tax is to be levied. It was held that after the amendment of the State Act, as applied to the Union Territory of Delhi by Parliament in 1959, the widest amplitude of power has been conferred by section 5A of the Act on the Chief Commissioner in the matter of selecting the point for taxation in a series of sales and, therefore, no single point can be spelled out even by implication from the provisions of section 5(2)(a)(ii) of the State Act. It was held that the assessment of sales tax of the turnover of cotton yarn of the appellant under the Bengal Finance (Sales Tax) Act, 1941, as applied to the Union Territory of Delhi, was invalid and liable to be quashed. This decision, in our view, has no direct bearing on the points involved in the case before us. 25. It was held that the assessment of sales tax of the turnover of cotton yarn of the appellant under the Bengal Finance (Sales Tax) Act, 1941, as applied to the Union Territory of Delhi, was invalid and liable to be quashed. This decision, in our view, has no direct bearing on the points involved in the case before us. 25. It was next contended on behalf of the applicant that since it is the admitted case of the respondent that the assessment was made under section 4(6)(i) of the BFST Act, 1941, it is incumbent upon the respondent to satisfy itself that the purchases were from a dealer, who is not registered under the Act. In answer to this, our attention was drawn to the provisions of section 4(7) which provides that if any question arises whether a purchase has been made from a registered dealer or from a dealer, who is not registered for a purpose other than those specified in clause (i) of the preceding sub-section and hence not liable to be taxed under the said clause, the burden of proof shall be upon the dealer, who claims to be not liable to be taxed. In the instant case, the dealer, namely, the applicant, took no steps to discharge the burden. 26. Mr. A. K. Roy Chaudhury, appearing for the applicant in RN-2 of 1989, contended that the assessment made for the period ending July 31, 1979, was bad in so far the assessment proceedings were taken without service of proper notices on the applicant. The respondents in their opposition categorically stated that due notices were served on the applicant at their registered address, namely, 16, Topsia Second Lane, Calcutta. They also filed copies of the postal acknowledgements indicating receipt of the notices by the applicant. Faced with this situation, the applicant in his affidavit-in-reply, could not deny the fact of service of notice and Mr. Roy Chaudhury fairly conceded that this was a point which he could not legitimately urge. But he contended that in any case, the assessment was arbitrary and capricious and could not, therefore, be sustained. 27. The records of the assessment proceedings were produced before us at the time of hearing. Roy Chaudhury fairly conceded that this was a point which he could not legitimately urge. But he contended that in any case, the assessment was arbitrary and capricious and could not, therefore, be sustained. 27. The records of the assessment proceedings were produced before us at the time of hearing. It shows that even though there was no appearance on behalf of the applicant at the initial stage, one Shri S. C. Bera, Advocate, appeared on behalf of the applicant before the Commercial Tax Officer and on his prayer successive adjournments were granted. Finally, the case was fixed on June 21, 1983, for hearing and orders, but on that date there was no appearance on behalf of the applicant and no prayer for adjournment was also made. Consequently, the Commercial Tax Officer made an ex parte assessment to the best of his judgment. 28. The principles regarding best judgment assessment are now well-established upon a consideration of the different authorities cited by Mr. Roy Chaudhury and also Mr. Chakraborty appearing for the applicant in the other two cases. The assessing authority in making a best judgment assessment is not entitled to make a pure guess-work and make an assessment without reference to any evidence or any material at all. The estimate must be related to some evidence or material and it must be something more than mere suspicion. He must make what he honestly believes to be a fair estimate. A capricious surmise unsupported by any relevant material could not be sustained. While there must necessarily be some guess-work in the matter, it must, however, be an honest guess-work. The Commercial Tax Officer in making an ex parts best judgment assessment must make a fair estimate of the proper figure of assessment, and for this purpose he should take into consideration all relevant materials including the previous returns of the assessee, if available, which he thinks would assist him in arriving at a fair and proper estimate. [See [1975] 36 STC 101 (Cal) (Bachhraj Baid v. Commercial Tax Officer), [1957] 8 STC 770 (SC) (Raghubar Mandal Harihar Mandal v. State of Bihar), [1966] 17 STC 130 (Cal) (Jhagru Shaw v. Commissioner of Commercial Taxes) and [1966] 17 STC 465 (SC) (State of Kerala v. C. Velukutty)]. 29. In the order of assessment for the period ending July 31, 1979, the estimated gross turnover was found at well over Rs. 29. In the order of assessment for the period ending July 31, 1979, the estimated gross turnover was found at well over Rs. 50 lakhs. There is reference to an earlier assessment. The records of the assessment proceedings relating to RN-20 of 1989 for the period ending July 31, 1978, shows that the dealer on his own statement made stock transfer of goods worth over Rs. 68 lakhs. Considering the inflationary trend and rising prices, a fact of which judicial notice can be legitimately taken, it seems that the assessment made in RN-2 of 1989 could not be said to be capricious or arbitrary or without any reasonable nexus to available materials. In that view of the matter, we are unable to interfere with the order made in the assessment proceedings for the period ending July 31, 1979. The purchase price in this case was taken at Rs. 70 lakhs which, in our view, was not unreasonable in view of the materials available to the assessing authority. 30. Case No. RN-20 of 1989, however, stands on a different footing. The records of the assessment proceedings of this case show that on September 25, 1981, one Zahirul Islam, Manager of the applicant, submitted a statement of stock transfer to Madras and prayed for an adjournment. On his prayer the matter was adjourned to November 12, 1981. On that date there was no appearance on behalf of the dealer. The dealing assistant was directed to check-up and report if dealer's petition, if any, for time was filed. The matter was again directed to be put up on November 21, 1981. The assessing officer on that date recorded an order to the effect that there was no petition from the dealer for adjournment. December 19, 1981 was fixed for passing orders. The assessment was completed ex parte on that date. Mr. A. K. Chakraborty, appearing on behalf of the applicant, contended that since November 12, 1981 was the date fixed and since the actual order of assessment was made on December 19, 1981, the applicant was entitled to another chance to represent its case. We are unable to agree with this view. Mr. Chakraborty, however, referred to several decisions in this connection. The case of Juggilal Kamlapat v. General Fibre Dealers Ltd. reported in AIR 1955 Cal 354 , in our view, has no bearing on the facts in issue. We are unable to agree with this view. Mr. Chakraborty, however, referred to several decisions in this connection. The case of Juggilal Kamlapat v. General Fibre Dealers Ltd. reported in AIR 1955 Cal 354 , in our view, has no bearing on the facts in issue. That was a case under the Arbitration Act, 1940. It was held that if in the First notice there are indications that on the failure of the party to appear, the matter may be disposed of ex parte and if the arbitrator does not in fact proceed ex parte on the day fixed but fixes another subsequent date, he cannot proceed ex parte on such subsequent date, unless he issues a similar notice in respect of that date as well. The decision is based upon the particular provisions of the Arbitration Act and the nature of the proceedings. Their Lordships have categorically stated that the procedural law applicable to arbitration proceedings is more tolerant than the rule followed in the courts of law. That being the position, we are unable to find on the authority of this decision, that a fresh notice should have been served after November 21, 1981. We are unable to accept this contention. It was clearly the duty of the applicant to keep himself in touch with the progress of the case. There is no authority for the proposition that fresh notices should be served after every adjournment. Even if it is so done, that cannot be insisted as a matter of course. It is done only as a matter of grace, if at all. In this case, however, there was no adjournment for hearing the matter. The officer spent some time in ascertaining whether any adjournment has been prayed for and for making the ex parte order. We do not consider this impermissible in law. 31. The decision in the case of Commissioner of Income-tax v. Ramendra Nath Ghosh reported in [1971] 82 ITR 888 (SC) cited on behalf of the applicant, is no authority on the point. We do not consider this impermissible in law. 31. The decision in the case of Commissioner of Income-tax v. Ramendra Nath Ghosh reported in [1971] 82 ITR 888 (SC) cited on behalf of the applicant, is no authority on the point. On the contrary, there is an observation in that case that the question whether the assessee has been served in accordance with law or not was essentially a question of fact, and though the High Court had jurisdiction to entertain the writ petition challenging the service of notice, the assessee should not have been allowed to invoke the extraordinary jurisdiction of the High Court. 32. Mr. Chakraborty, however, made a grievance that in this case an appeal was preferred against the order of assessment along with an application for stay of realisation, but that appeal was summarily rejected on grounds of limitation without service of proper notice upon the applicant. It appears from the proceedings of the appellate authority that notice to show cause as to why the appeal shall not be rejected on ground of limitation, was initially issued by registered post. This registered letter was returned undelivered with the postal endorsement "left". Thereafter, recourse was taken to service by affixation obviously under rule 84 of the Bengal Sales Tax Rules, 1941. Rule 84 in its material part reads as follows : "Any notice which is issued under the provisions of the Act or these Rules or which is required to be issued for carrying out the purposes of the Act, may be served on a dealer by any of the following methods, namely :- (i) personally upon the addressee, if present; (ii) by messenger; (iii) by registered post." The proviso to the rule lays down that if the authority issuing the notice is satisfied that an attempt has been made to serve a notice by any of the above-mentioned methods and the dealer is avoiding service or that for any other reason the notice cannot be served by any of the above-mentioned methods, the said authority may, after recording his reasons for so doing, cause such notice to be served by affixing a copy thereof in some conspicuous place in his office and also upon some conspicuous part of the last notified place of business of the dealer, and a notice so served shall be deemed to have been duly served. 33. 33. In this case the applicant preferred an appeal against the order of assessment. Upon the presentation of the appeal there was an order dated February 15, 1984, asking the applicant to show cause on April 2, 1984, why the appeal should not be rejected on the ground of limitation. The show cause notice was sent by registered post which was returned undelivered with the postal endorsement "left". Thereupon the appellate officer observed that the letter was correctly addressed and no change of address was intimated; hence the authority directed service by affixation. The process-server's report indicates as if the business of the applicant was closed for six/seven months and the owner of the business could not be contacted. Hence, a copy of the notice was served by affixation at the address. No names of the witnesses or their addresses could be ascertained. These facts appear from the records of the appeal case which was produced at the time of the hearing. 34. It appears from a perusal of rule 84, referred to above, that before affixation it had to be found that the dealer was avoiding service. According to rule 84, the officer has to be satisfied that the addressee was avoiding service and then he has to record his reasons for directing service in the substituted manner laid down in the proviso to rule 84. The mere fact that the letter sent by registered post was returned undelivered, could not by itself be sufficient for holding that the addressee was avoiding service. The authority concerned failed to record his reasons for directing service by substituted manner except merely saying that the letter was correctly addressed, and that no other address was available. Mr. Chakraborty argued that at least the address of the applicant at Madras was known and an attempt should have been made for service at that address before resorting to the substituted service. We are not in agreement with Mr. Chakraborty on this point The registered address of the applicant was 16, Topsia Second Lane. The appeal was presented from that address. There could be no question of trying to effect service at some other address in the State of Madras. At any rate, the order of the appeal case does not indicate sufficient compliance with rule 84. Consequently, we are unable to treat this as proper service of the notice. The appeal was presented from that address. There could be no question of trying to effect service at some other address in the State of Madras. At any rate, the order of the appeal case does not indicate sufficient compliance with rule 84. Consequently, we are unable to treat this as proper service of the notice. In support of the view we have taken, we may refer to the decision in the case of Textile Machinery Corporation Ltd. v. Additional Member, Board of Revenue reported in [1981] 48 STC 426 (Cal). Consequently, it follows that the appeal was disposed of without proper service of notice. 35. In regard to RN-105 of 1989, there is a similar defect in the matter of service of the demand in form VII. In this case, after completion of assessment on July 27, 1984, there was an office report that form VII was returned with the postal remark "left". Thereupon, the officer concerned passed the following order : "Seen note in the margin. Serve the notice through P.S. re-fixing the date of payment by October 31, 1984." The report of the process-server is also on the record and it is exactly in the same terms as in the appeal case. There is no indication that one copy of the notice was affixed in the office. No reason has been recorded for directing service through process-server. Nor is there any indication as to how the officer concerned was satisfied that the addressee was avoiding service. In that view of the matter, the service of demand in form VII also cannot be treated as a proper service. This being the position, we feel that there should be fresh service of form VII at the changed place of business of the applicant which has now been intimated to the authority concerned, namely, 23, Topsia Second Lane, Calcutta, 700 039. Since there was no proper service of form VII, the proceedings subsequent thereto also cannot be said to have been validly taken. The applicant is entitled to a fresh notice being served, and if a fresh demand in form VII is served, the applicant shall be entitled to file an appeal under section 20 of the BFST Act, 1941, within the period of limitation prescribed therein. 36. The applicant is entitled to a fresh notice being served, and if a fresh demand in form VII is served, the applicant shall be entitled to file an appeal under section 20 of the BFST Act, 1941, within the period of limitation prescribed therein. 36. For the reasons aforesaid, we think that Case No. RN-20 of 1989 should go back to the appellate officer for causing fresh service of show cause notice and Case No. RN-105 of 1989 should go back to the assessing authority for fresh service of demand notice in form VII. 37. The prayer made on behalf of the applicant in all the three cases, namely, that the assessment should be set aside and the matters should go back to the assessing authority for fresh assessment, cannot be accepted. It will bear repetition that there has been no procedural defect so far as RN-2 of 1989 is concerned, and we have already indicated that the assessment made therein cannot be said to be capricious or arbitrary. Therefore, this case must fail. 38. RN-105 of 1989, however, is remitted back to the assessing authority for fresh service of demand notice in form VII in accordance with law and RN-20 of 1989 is remitted to the appellate authority for fresh hearing on all points including limitation. Since, however, we are remitting these two cases on entirely different considerations, we propose not to enter into the question of the propriety or otherwise of the assessment made therein. We further observe that even though proper notice was not served, yet the applicant could have approached the appropriate forum for relief much earlier. In view of the delayed applications, we are inclined to allow these two cases subject to payment of costs of an exemplary nature. 39. Hence it is ordered that Case No. RN-2 of 1989 be dismissed on contest but without any costs. The sum of Rs. 1,40,000, furnished as security, shall be adjusted against the total demand. Case Nos. RN-20 of 1989 and 105 of 1989 are allowed in part for the purposes indicated hereinbefore on condition that a sum of Rs. 1,000 in each of those two cases as costs be paid by the applicant in favour of the Commissioner of Commercial Taxes, West Bengal, within two weeks. In default of payment of such costs within the period of two weeks. Case Nos. 1,000 in each of those two cases as costs be paid by the applicant in favour of the Commissioner of Commercial Taxes, West Bengal, within two weeks. In default of payment of such costs within the period of two weeks. Case Nos. RN-20 and 105 of 1989 shall stand dismissed. If costs are paid, it shall not be necessary for the appellate authority to serve notice to show cause afresh. The applicant shall appear before the appellate authority within two weeks of deposit of costs and take such steps as it may be advised. The cases are thus disposed of. P. C. BANERJI (Technical Member). - I agree. L. N. RAY (Judicial Member). - I agree. Case Nos. RN-20 and 105 of 1989 partly allowed. Case No. RN-2 of 1989 dismissed.