Judgment :- (1.) This application is directed against an order of the learned West Bengal Taxation Tribunal dated 27th February, 2004, whereby and whereunder, three applications filed under section 8 of the West Bengal Taxation Tribunal Act, 1987 (hereinafter referred to as the said Act) being RN-326 of 2002, RN-348 of 2002 and RN-349 of 2002, were dismissed. The learned Tribunal recorded that in all the three matters, the issues involved are identical; so common judgment would serve the purpose. We are not concerned with the other matters except RN-348 of 2002. (2.) The learned Tribunal by the common judgment and order has dismissed the application of the applicant before us being RN 348 of 2002 holding that the application is barred by limitation and also on merit that there is no reason to interfere with the order passed by the Commercial Tax Officer. (3.) Before the learned Tribunal the applicant before us challenged the search and seizure of the goods and also the order imposing penalty amounting to Rs.2,52,000/ by an order dated 28th June, 2002. The case of the petitioner before the learned Tribunal was that without conducting any search, seizure and supplying the seizure list, the aforesaid amount of penalty was imposed on 26th June, 2002 and thereafter on paper the seizure was made subsequently i.e. on 4th July, 2002. According to the petitioner, before the learned Tribunal, the proceedings for imposition of penalty under section 71 of the West Bengal Sales Tax Act, 1994 is null and void as there has been neither lawful search and seizure nor supply of seizure list which is a sine qua non to precede the hearing for imposition of penalty. (4.) The applicant under compulsion had to pay the entire amount of penalty and thereafter the said order of search and seizure was challenged. This was not challenged within the period, prescribed under section 8(2) of the said Act. Learned Tribunal has held that since the application was not filed within the prescribed period, it is barred by limitation and further on merit it was found, having taken note of the statements and averments made in the affidavit-in-opposition that the entire exercise was lawful so also the order of imposition of penalty. (5.) Being aggrieved by the said order, the present application has been made before us. (6.) Mr. (5.) Being aggrieved by the said order, the present application has been made before us. (6.) Mr. Gupta, learned senior Advocate, appearing for the petitioners, while assailing the order impunged contends that the learned Tribunal has fallen in error in holding that the application is barred by limitation. According to him, the learned Tribunal should have extended the time in exercise of power as provided in the proviso of sub-section (2) of section 8 of the said Act. According to him, the provision of section 5 of the Limitation Act should be made applicable in this case as there has been no provision either expressed or by necessary implication in the said Act, excluding applicability of section 5 of the Limitation Act. On merit he submits that if one reads section 71 of the West Bengal Sales Tax Act, then it will appear that penalty proceeding shall be initiated only when there has been lawful search and seizure and reasonable opportunity of hearing is given. (7.) It is an admitted position that seizure list was supplied, subsequent to the order of imposition of penalty. According to him, when a thing is to be done in accordance with the provisions of law and in a particular manner, this has to be done in that manner or not at all. The entire exercise of imposition of penalty is void and ultra vires the provision of the said section. (8.) He further submits that the learned Tribunal ought not to have accepted the explanation as being all alleged mistake blindly and without having verified the same from the records. Therefore, the learned tribunal failed to exercise his jurisdiction lawfully. He, therefore, concludes that the order imposing penalty, so also the order passed by the learned Tribunal are not sustainable in law and should be set aside and he prayed for refund of the entire amount of penalty as it was not lawfully realised and it was extorted under the garb of legal process. (9.) Mrs. Seba Roy, learned counsel appearing for the department concerned contends that actually the goods were seized and seizure memo was prepared on the same very date i.e. on 28 June, 2002 itself. Show-cause notice was also issued on the very same date and hearing was also given and after hearing and examining the documents, the officer concerned imposed the penalty of Rs. Show-cause notice was also issued on the very same date and hearing was also given and after hearing and examining the documents, the officer concerned imposed the penalty of Rs. 2,52,000/-after having determined valuation of the goods at Rs. 7,75,702/-. Unfortunately, by mistake the seizure list was dated as 4th July, 2002 and this was sheer inadvertent mistake committed by the officer concerned who has explained the same before the learned Tribunal in an affidavit. The statements and averments made in the said affidavit was not contraverted specifically before the learned Tribunal. When a mistake is committed by an officer and the same is reflected in the records. the correct thing has to be accented and the learned Tribunal has done so. (10.) Under such circumstance, she submits that there is no illegality and irregularity in conducting the search and seizure and also taking hearing of the matter before imposition of penalty. The order was passed after giving a chance of hearing and, therefore, there is no need to interfere with the same. According to her, the limitation prescribed in section 8(2) and the proviso, is a fixed one and there is no application of section 5 of the Limitation Act and the learned Tribunal had no option but to reject the application on the ground of limitation as the same was filed admittedly beyond sixty days as prescribed in the said Act. She, therefore, prays that this Court should not interfere with the judgment and order of the learned Tribunal, which is well reasoned and this Court will not substitute its own reasoning in exercise of power of judicial review. (11.) We have heard the contentions of the respective learned counsel. (12.) Now the questions which have fallen for determination by this Court are as follows: 1. Whether the learned Tribunal was justified in holding that the application filed under section 8 before the Tribunal is barred by limitation, in the context of section 8(2) and proviso or not? 2. Whether the order imposing penalty has been passed with due process, as prescribed under the law or not? (13.) While dealing with the first point, we think it fit to examine the scope and purport of section 8(2) of the West Bengal Taxation Tribunal Act, 1987 which is quoted hereunder: "S.8 - Extraordinary jurisdiction. (1) ...... 2. Whether the order imposing penalty has been passed with due process, as prescribed under the law or not? (13.) While dealing with the first point, we think it fit to examine the scope and purport of section 8(2) of the West Bengal Taxation Tribunal Act, 1987 which is quoted hereunder: "S.8 - Extraordinary jurisdiction. (1) ...... (2) Every application under sub-section (1) shall be made within sixty days from the date of such order passed or action taken, as the case may be, or within such further time as may be allowed by the Tribunal for cause shown to its satisfaction and shall be made in such form and accompanied by such documents or other evidence and by such fee as may be prescribed: Provided that an application may be entertained within sixty days from the commencement of clause (a) of section 7 where the applicant proves to the satisfaction of the Tribunal that the order of action by which he is aggrieved was passed or taken, as the case may be, within sixty days prior to the commencement of the aforesaid clause (a) of the said section and that he has not moved the High Court against such order or action passed or taken under the specified State Act." (14.) It appears to us that said sub-section (2) makes it clear that the application has to be made within sixty days or within such further time as may be allowed by the Tribunal. In this sub-section there is no mention as regard non-applicability and/or exclusion of the provision of section 5 of the Limitation Act. Rather the words "such further time" unmistakably give rise inference of consistency of section 5 of Limitation Act, 1904. But it would be useful in this context to consider the judicial pronouncement on this subject as to whether provision of the Limitation Act can be made applicable before the Tribunal or not. (15.) From the impugned judgment and order it appears that this point was not argued specifically nor any judicial pronouncement was placed. One of us (Honble Justice LP. (15.) From the impugned judgment and order it appears that this point was not argued specifically nor any judicial pronouncement was placed. One of us (Honble Justice LP. Mukerji) while sitting singly, in the case of Texmaco Ltd. v. Appellate Authority and Ors., reported in 2009(4) CHN 318 , taking note of two Supreme Court judgments rendered in the case of Sakaru v. Tanaji, reported in 1985(22) ELT 327 (SC) and Commissioner of Sales Tax, Uttar Pradesh v. Parson Tools and Plants Kanpur, reported in AIR 1975 SC 1039 , held that provisions of the Limitation Act, in case of Tribunal, is not applicable ordinarily but in paragraph 5 of the said judgment His Lordship has observed as follows: "However, if the Court exercising jurisdiction under 226 of the Constitution of India finds that it is a fit case to extend the time for doing an act prescribed by a statute including preferring an appeal before the Tribunal, it may do so unless the language of the statute is so strict that the Court cannot extend the time." (16.) This Bench, with respect, accepts and approves the aforesaid proposition in this case also, for the reasons discussed hereinbelow. (17.) Statutorily the learned Tribunal exercises jurisdiction under Article 226 as it has been formed under the provision of Article 323B of the Constitution of India. The status, as regards power of this sort of Tribunal has elaborately been discussed and dealt with in a large number of cases and one of such cases is reported in AIR 1997 SC 1125 (L. Chandrakumar v. Union of India). In this judgment it has been expressly declared provision of law that this Tribunal has power to resolve all dispute arising out of the Constitution and also the statute by which it is formed, as exercisable by the High Court, under Article 226 as also Article 227 of the Constitution of India, except the power to examine the constitutional validity of the Act by which it is formed. (18.) No constitutional validity has been challenged before the learned Tribunal in this matter. Therefore, this Tribunal has to play the role as a supplemental to the High Court with regard to the power of judicial review under Article 226. (18.) No constitutional validity has been challenged before the learned Tribunal in this matter. Therefore, this Tribunal has to play the role as a supplemental to the High Court with regard to the power of judicial review under Article 226. (19.) It is a settled position of the law that right of a citizen to access to the superior Court under Article 226 and 227 is a fundamental right and power to exercise such jurisdiction by the High Court as well as Tribunal, in some cases, is basic structure of the Constitution. When a citizen has got fundamental right and that has to be remedied, the period of limitation cannot stand in the way. Before we conclusively hold whether provisions of section 5 of the Limitation Act applies or not, we must discuss the ratio laid down in the said two cases of Supreme Court as noted by His Lordship while sitting singly dealing with the aforesaid matter. (20.) In the case of Commissioner of Sales Tax, Uttar Pradesh, Lucknow v. M/s. Parson Tools and Plants, Kanpur, reported in AIR 1975 SC 1039 , while dealing with relevant State Sales Tax Act, Supreme Court held as follows: "The three stark features of the scheme and language of the above provision, unmistakably show that the legislature has deliberately excluded the application of the principles underlying sections 5 and 14 of the Limitation Act, except to the extent and in the truncated form embodied in subsection (3-B) of section 10 of the Sales Tax Act. Delay in disposal of revenue matters adversely affects the steady inflow of revenues and the financial stability of the State. Section 10 is therefore designed to ensure speedy and final determination of fiscal matters within a reasonably certain time-schedule." (21.) It is apposite to reproduce the relevant provision of section (3B) of Uttar Pradesh Sales Tax Act in the following manner: "(3B) The application under sub-section(3) shall be made within one year from the date of service of the order complained of, but the Revising Authority may on proof of sufficient cause entertain an application within a further period of six months." (22.) The Supreme Court was dealing with the time limit for making revisional application before the Revising Authority appointed under the statute. (23.) From a reading of the aforesaid section, it is clear that Legislature purposely provided the extreme point for entertaining revisional application and that is why six months more time has been given an thereby any unlimited period of time is excluded by necessary implication. (24.) In section 5 of the Limitation Act, there is no time mention as regard condonation of delay. Under such circumstances, the Supreme Court held that by the aforesaid subsection (3B) applicability of the Limitation Act, namely, sections 5 and 14 has been excluded. We think this judgment will not stand in the way in this case having regard to the language we have noted above. (25.) Similarly, in the case of Sakuru v. Tanaji reported 1985(22) E.L.T 327 (S.C), the Supreme Court has propounded the statement of law with regard to the applicability and non-applicability of the Limitation Act in case of fiscal statute under which the Tribunal has been formed, as follows: "But even in such a situation the relevant special statute may contain an express provision conferring on the appellate authority, such as Collector, the power to extend the prescribed period of limitation on sufficient cause being shown by laying down that the provisions of section 5 of the Limitation Act shall be applicable to such proceedings." (26.) In that case, like U.P case, by virtue of section 93, the applicability of provision of the Limitation Act was excluded. (27.) Upon reading of the aforesaid observation of the Supreme Court as also the observation of the Honble Single Judge of this Court in the cases quoted above, we are of the view that the period of sixty days mentioned under section 8 of the said Act, is not an inflexible and static one as there is no prohibition that after expiry of sixty days application cannot be entertained. Moreover, considering the status of this tribunal discussed above, it is not a mere tribunal but a Court nearly akin to this Court. Therefore, the Limitation Act squarely applies to it. In our considered opinion, reading the language of the said section, there is no provision inconsistent with the Limitation Act, 1963. (28.) Therefore, by virtue of section 29(2) of the Limitation Act, an application filed beyond the period of sixty days, can be entertained provided the Tribunal is satisfied with the reasons or grounds made out for not coming within the period. (28.) Therefore, by virtue of section 29(2) of the Limitation Act, an application filed beyond the period of sixty days, can be entertained provided the Tribunal is satisfied with the reasons or grounds made out for not coming within the period. Now, it is well settled that provisions of the Limitation Act is also applicable in the proceeding in exercise of writ jurisdiction. The Tribunal has exercised jurisdiction under Article 226 in real sense. (29.) It will be clear from the language mentioned in section 8 of the said Act, in its entirety, under what circumstances and when such an application can be entertained. Actually, the power given under section 8 of the said Act to the Tribunal, is a power of judicial review which is completely distinct and different from the power of appellate authority or revising authority. If any proceeding is initiated under the statute itself which is not that of a power of judicial review, then strict interpretation of the provisions of limitation as prescribed in the statute has to be made applicable. (30.) Under those circumstances, we are of the view that the learned Tribunal should have condoned the delay and ought not to have dismissed the application on the ground of limitation. (31.) The aforesaid discussion and decision of this Court is academic in strict sense, as the matter was dealt with by the learned Tribunal, ultimately on merit also. We now, therefore, discuss and deal with the contention and rival contention of the parties on the merit of this case. (32.) We have examined the records carefully and we are in agreement with Mr. Gupta that the order of imposition of penalty passed on the very same date i.e. on 28th, June, 2002 and show-cause notice was also issued on the same date. (33.) Going by the records, it appears that seizure is said to have taken place on 4th July, 2002 as the seizure memo was supplied on 4th July, 2002. The scheme of the Act is very clear as to when and how imposition of penalty shall be made. (34.) Section 69 of the West Bengal Sales Tax Act, 1994 provides for interception, detention and search of road vehicles and search of warehouse. Section 70 provides for seizure of goods. The scheme of the Act is very clear as to when and how imposition of penalty shall be made. (34.) Section 69 of the West Bengal Sales Tax Act, 1994 provides for interception, detention and search of road vehicles and search of warehouse. Section 70 provides for seizure of goods. (35.) Upon reading of the aforesaid two sections, if is clear that the goods can be seized only after interception, detention and search being made and after seizure is conducted, the seizure list has to be prepared and to be handed-over to the party or parties concerned. (36.) After the seizure of goods is carried out, preceded by interception and detention, then only penalty proceeding under section 71 has to be initiated and this would be clear from the language of section 71 of the Sales Tax Act which is quoted hereunder: "S.71. Penalty for transporting goods in contravention of section 68 or [section 73].-(1) If any goods are seized under section 70, the Commissioner or the additional Commissioner may, by an order in writing, impose upon the person from whom such goods are seized or the owner of such goods, where particulars of the owner of such goods are available, or where there is no claimant for such goods at the time of such seizure, any person who subsequently establishes his claim of ownership or possession of such goods, after giving such person or owner, as the case may be, a reasonable opportunity of being heard, a penalty of a sum not exceeding fifty per centum of the value of such good as may be determined by him in accordance with the rules made under this Act: [Provided that the sum of penalty that may be imposed under this subsection shall not exceed - (a) thirty per centum of the value of goods if the rate of tax leviable under sub-section (1) of section 17, or sub-section (1) of section 18, or subsection (1) of section 20, in respect of such goods does not exceed ten per centum. (b) fifty per centum of the value of goods if the rate of tax leviable under sub-section (1) of section 17, or sub-section (1) of section 18, in respect of such goods exceeds ten per centum.) (2) A penalty imposed under sub-section (1) shall be paid by the person or the owner of goods, as the case may be, into a Government Treasury or the Reserve Bank of India by such date as may be specified by the commissioner or the Additional Commissioner in a notice to be issued for this purpose, and the date so specified shall not be earlier than fifteen days from the date of the notice: Provided that the Commissioner or the Additional Commissioner may, for reasons to be recorded in writing, extend the date of payment of the penalty for such period as he may think fit. (3) The goods seized under section 70 shall be released in the prescribed manner on payment of the penalty imposed under sub-section (1). (4) If the penalty is not paid by the date specified in the notice issued under sub-section (2), the Commissioner or the Additional Commissioner may, in such manner and subject to such restrictions and conditions as may be prescribed, sell the goods so seized under section 70 in open auction and remit the sale proceeds thereof to a Government Treasury. (5) Notwithstanding anything contained in sub-section (3),-(a) the person to whom the Commissioner, has, under sub-section (4), of section 3, delegated his power for revision under section 81, pending disposal of an application for revision against an order for imposition of penalty referred to in sub-section (1), or (b) the Commissioner, where there is no application for revision under section 81, may, for reasons to be recorded in writing, direct release of the goods seized under section 70 on such terms and conditions as he may deem fit. (6) Notwithstanding anything contained in sub-section (4), the Commissioner may, subject to such rules as may be made under this Act, where the goods seized under section 70 are-fa) of perishable nature, or (b) required to be used by a specified date, sell such goods in open auction after the expiry of such period as he may consider fit and proper, if he is of opinion that such goods may become unusable or unsaleable on detention, or destroy such goods if the said goods become unusable before the sale in open auction actually takes place. (7) The proceeds of sale of the goods referred to in sub-section (4) or subsection (6) shall be applied in the prescribed manner for payment in the following order of priority: (a) first, for incidental charges, if any, relating to auction sale of such goods; (b) secondly, for expenses, if any, for storage of such goods; (c) thirdly, for penalty imposed under subsection (1); and the balance of the proceeds of sale, if any, shall be paid to the owner of the goods or, if his particulars are not available, to the person from whom such goods were seized under section 70, upon application within one year from the date of sale or within such further period as may be allowed by the Commissioner for cause shown to his satisfaction. (8) Any amount of penalty imposed under sub-section (1), which remains unpaid after the date specified in the notice issued under sub-section (2) or which cannot be recovered in accordance with the provisions of subsection (4), subsection (6) or sub-section (7), shall be recoverable in accordance with the provisions of section 52." (37.) We, therefore, are of the view after careful reading of the said section that lawful interception, detention and search followed by seizure of the goods, as mentioned in sections 69 and 70 are sine qua non to initiate the proceedings for imposition of penalty under section 71. In this case, we have noted that seizure took place subsequently, but in the affidavit-in-opposition filed before the learned Tribunal it has been explained that it was a mistake. (38.) We are unable to accept the contention of Mrs. Seba Roy that when on affidavit it has been explained that it was a sheer mistake as regards the date of seizure, the Court should not look into this inadvertent mistake and accept the explanation. (38.) We are unable to accept the contention of Mrs. Seba Roy that when on affidavit it has been explained that it was a sheer mistake as regards the date of seizure, the Court should not look into this inadvertent mistake and accept the explanation. In this context the learned Tribunal we find, as rightly argued by Mr. Gupta, has mechanically accepted the statement that it was a mistake. We feel that the learned Tribunal on production of the record should have verified whether such mistake was genuine or not. The statements made in affidavit is nothing but an oral version reduced in writing which may vary or may lie; but the records maintained and preserved contemporaneously, will bring the truth. The records were not produced to support the story of mistake and we find that the learned Tribunal has committed error in not looking into the records before accepting such explanation to be correct. We think, this is a failure of exercise of jurisdiction in this case. Before us, in the affidavit-in-opposition detailed particular has not been given as to how such mistake took place nor any record has been produced to support such mistake. (39.) Under those circumstances, we cannot uphold the order imposing penalty which has not been made in accordance with the procedure laid down under the Act and it is settled position of law that procedural safeguard is one of the facets of the principles of natural justice and it is not a ritual formality. It has to be strictly followed and deviation thereof will vitiate the entire proceedings. We are unable to sustain the order of penalty, so also the judgment and order of the learned Tribunal and we set aside the same. (40.) Mr. Gupta, however, submits that the entire seizure should be quashed and set aside. We are unable to do so. The seizure took place on 4th July, 2002 and a seizure list was also supplied on that date. (41.) Therefore, a fresh proceedings should be initiated taking note of the aforesaid seizure dated 4th July, 2002 and a fresh hearing should be given to Mr. Guptas clients and upon hearing being given, fresh adjudication is to be made. The seizure took place on 4th July, 2002 and a seizure list was also supplied on that date. (41.) Therefore, a fresh proceedings should be initiated taking note of the aforesaid seizure dated 4th July, 2002 and a fresh hearing should be given to Mr. Guptas clients and upon hearing being given, fresh adjudication is to be made. (42.) Petitioners will be entitled to place all documents in support of their case on fact as also on law and it would also be open to question the legality and validity of the seizure and preparation of the seizure list. We have taken note of only of the date of seizure, not other things. This fresh adjudication shall be completed within a period of two months from the date of communication of this order. Therefore, fresh show-cause notice shall be issued by the officer concerned within a period of fortnight from the date of communication of this order. (43.) We, accordingly, dispose of this application with the aforesaid order. It is made clear that the order, to be passed upon fresh adjudication, must be a speaking one and decision shall be rendered without being influenced and swayed by the earlier decision or reasoning. Therefore, the applicant shall file reply to the show-cause notice within fortnight from the date of receipt peremptorily. After decision is rendered, the amount already deposited, will abide by the same. In the event it is found that any amount is refundable, either wholly or partly, then this shall be done with interest at the rate of 9% per annum from the date of deposit. (44.) We, accordingly, dispose of this application with the aforesaid order. There will be no order as to costs. Application disposed of.