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2003 DIGILAW 643 (CAL)

M. S. FREIGHT CARRIERS v. COMMERCIAL TAX OFFICER

2003-12-18

ALTAMAS KABIR, JYOTIRMAY BHATTACHARYA

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ALTAMAS KABIR, JYOTIRMAY BHATTACHARYA ( 1 ) IN this writ application, the petitioners have challenged an Order passed by the West Bengal Taxation Tribunal dated August 13, 2003 in RN-347 of 2003*, dismissing the petitioners' application for condonation of the delay in filing the main application challenging the seizure of the goods in question on September 11, 2002. ( 2 ) AS will appear from the facts as disclosed, the petitioners herein were the carrier of certain goods purportedly on behalf of the owner M/s. Promising Exports Ltd. when the seizure was effected, penalty proceedings were initiated against the petitioners herein as the carrier of the goods. The same was initially challenged by the petitioners before the Assistant Commissioner, Taxation, Central Section, within the time prescribed in the statute. It is submitted that the said petition is still pending disposal. During the pendency of the revisional application, M/s. Promising Exports Ltd. , claiming to be the owner of the goods, were advised to challenge the seizure proceedings before the learned Tribunal since the department was not entitled to consider the same. The owner of the goods was advised that only the penalty proceedings could be questioned before the department. ( 3 ) THE application filed by M/s. Promising Exports Ltd. , came up for disposal before the learned Tribunal which dismissed the same on the ground that there was a dispute regarding the ownership of the goods seized. Immediately thereafter, the present petitioner also filed an application before the learned Tribunal challenging the seizure proceedings which were disposed of by the learned Tribunal by its Order dated August 13, 2003 impugned in the instant writ application. ( 4 ) AS will appear from the Order itself, the main application having been filed well beyond the period of limitation, an application was also filed for condonation of such delay under Section 5 of the Limitation Act. The same came up for consideration before the learned Tribunal which rejected the same mainly on the ground that it was not satisfied with the cause of delay as projected on behalf of the petitioner. Aggrieved by the said Order dismissing the petitioners' main application on the ground of delay, the petitioners have filed the present writ application and when the matter was taken up at the initial stage it was submitted by Mr. Aggrieved by the said Order dismissing the petitioners' main application on the ground of delay, the petitioners have filed the present writ application and when the matter was taken up at the initial stage it was submitted by Mr. Chakraborty appearing in support of the petition that the delay in filing the application before the learned Tribunal was caused by the fact that the matter was pending Under wrong advice before the department. ( 5 ) FROM the copy of the grounds and the petition filed before the Assistant Commissioner, Commercial Taxes, Central Section, in form 53 of the Sales Tax Rules, 1995, it will appear that not only the penalty imposed on the goods after seizure, but also the seizure itself was questioned in the revisional application. Of course, it has been contended by Mr. Islam, appearing for the Revenue, that unless the seizure was questioned, the penalty proceedings could not be challenged as the same were consequential to such seizure. ( 6 ) WHILE we accept Mr. Islam's submission, we cannot also totally reject the contention of the petitioners that the seizure proceedings were also the subject-matter of the revisional application. In fact, in some of the grounds annexed with the form 53 a grievance has also been made in respect of the seizure and it has been submitted that the same being illegal was liable to be quashed. ( 7 ) WE are, therefore, satisfied that the petitioners had been pursuing their remedy relating to the seizure of the goods in question before the departmental authority which had no jurisdiction to consider the same and the learned Tribunal ought to have taken the matter into consideration while dealing with the petitioners' application for condonation of delay in filing the main application challenging the seizure proceedings. ( 8 ) WE, accordingly, set aside the Order passed by the learned Tribunal rejecting the petitioners' application for condonation of delay as also the main application challenging the seizure proceedings and direct that the main application be taken up for hearing upon condonation of the delay in filing the same. There will be no Order as to costs.