KAMAL KUMAR AGARWALversusCOMMISSIONER OF COMMERCIAL TAXES, WEST BENGAL & ORS.

                        (2010] 3 S.C.R. 1030


A                   KAMAL KUMAR AGARWAL
                                  v.
       COMMISSIONER OF COMMERCIAL TAXES, WEST
                      BENGAL & QRS.
              (Civil Appeal No. 2757 of 2010)
B
                          MARCH 26, 2010
             [S.H. KAPADIA AND AFTAB ALAM, JJ.]

          Sales Tax - West Bengal Sales Tax Act, 1994 - s.68(3)
C   - West Bengal Sales Tax Rules, 1995- r.211A(6)- Transport
    from port; airport etc., of consignment of goods despatched
    from any place outside West Bengal and bound for any place
    outside West Bengal - Regulatory measures to avoid tax
    evasion - Consignment of imported goods to be transported
D   through State of West Bengal to Mumbai - Appellant was the
    Customs House Agent (CHA) of the importer - Declaration
    made by appellant in prescribed format as per r.211A before
    taking delivery of the goods - Penalty imposed on appellant
    for failure to produce the endorsed counter-signed copy of the
E   declaration before the Assessing Authority - Justification of
    - Held: Justified - With the making of the Declaration, the
    appellant undertook the obligation to transit the consignment
    to a destination outside the State, for which the proof was the
    countersigned copy of the Declaration - Non-production
F   thereof, raised a legal presumption of tax evasion, which the
    appellant failed to rebut.

      The scope and effect of Section 68(3) of the West
  Bengal Sales Tax Act, 1994 read with sub-Rule (6) of Rule
  211A of the West Bengal Sales Tax Rules, 1995 came up
G for consideration in the present appeal.

     Appellant was appointed by an importer as its
  Customs House Agent [CHA). The consignment of
  imported goods was to be thereafter transported to
H                       1030
    KAMAL KUMAR AGARWAL v. C. C. T., WEST              1031
                 BENGAL

Mumbai through the State of West Bengal. Appellant             A
made declaration in prescribed format as per r.211A
before taking delivery of the goods. The goods passed
through the sales tax barrier at Haldia (the first
checkpost) and, ultimately, through the exit checkpost at
Chichira, and were finally received by the consignee           B
(importer).

     The Assistant Commissioner of Commercial Taxes
issued show-cause notice to the appellant alleging
contravention of Section 68 of the Act in respect of
transportation of the goods from Haldia to Chichira. It was    C
alleged that the appellant failed to produce the endorsed
copy of the prescribed Declaration in terms of Rule 211A.

     Appellant disputed the maintainability of the notice
stating that the subject goods could be moved only by          D
the owner or the importer, directly by itself or through its
transporter, and that appellant being a CHA, he had no
role to play in the movement of the goods. He submitted
that he was appointed by the importer only to get the
documents cleared from the Customs and Port                    E
authorities and not for movement of the goods and that
he was not required to keep an endorsed copy of the
said Declaration. The appellant contended that under
Rule 211A, the endorsed copy was returned to the person
transporting the goods for onward movement to its final        F
destination.

    The Assistant Commissioner of Commercial Taxes
imposed penalty on the appellant for failure to produce
the endorsed copy of the prescribed Declaration in terms
of Rule 211A. The order was upheld by the West Bengal          G
Taxation Tribunal as well as the High Court. Hence the
present appeal.

    Dismissing the appeal, the Court
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    1032    SUPREME COURT REPORTS                [2010] 3 S.C.R.


A        HELD: 1.1. The West Bengal Sales Tax Act, 1994 has
    been enacted to consolidate and amend the laws relating
    to the levy of tax on sale or purchase of goods in the
    State of West Bengal. [Para 9] [1050-E-F]

         1.2. To ensure that there is no evasion of tax, Section
8
    68 of the Act (which occurs in Chapter VIII of the Act), inter
    alia, states that no person shall transport from any Port
    or any checkpost or from any other place any
    consignment of goods, except in accordance with such
    restrictions and conditions, as may be prescribed. The
C   important words which occur in Section 68(1) of the Act
    are "no person". It does not refer to the word
    "transporter". This aspect is of some significance
    because Section 68(1) of the Act puts a restriction on the
    movement of goods. The checkposts are designed and
D   meant to prevent the evasion of sales tax and other dues.
    This restriction stands lifted subject to the compliance of
    certain provisions of the Act. Under Section 68(3) of the
    Act, any consignment of goods may be transported by
    any person after he furnishes in the prescribed manner
E   such particulars in such Form a~ may be prescribed. The
    expression "any person" in sub-section (3) of Section 68
    of the Act would include, a clearing and forwarding agent,
    a transporter or any person who makes a Declaration in
    the prescribed manner. Therefore, sub-section (3) is not
F   confined to a transporter, as is sought to be argued on
    behalf of the appellant. Secondly, sub-section (3)
    indicates that any consignment of goods may be
    transported by any person after he furnishes particulars
    in the prescribed Form. [Para 9] [1050-H; 1051-A-E]
G       1.3. Rule 211A of the West Bengal Sales Tax Rules,
    1995 occurs in Chapter XV of the Rules, which deals with
    restrictions on transport of any consignment of goods,
    regulatory measures for movement of such goods in
    transit through West Bengal, interception, search, seizure
H
    KAMAL KUMAR AGARWAL v. C. C. T., WEST            1033
                 BENGAL

and penalty for contravention, and certain measures to       A
prevent evasion of tax on sales within West Bengal. Both
Chapter VIII of the Act and Chapter XV of the Rules deal
with regulatory measures to avoid tax evasipn. Therefore,
the machinery provisions under the Act constitute an
integral part of the charging provisions. These regulatory   B
measures are intended to ensure that there is no evasion
of tax. Therefore, one cannot read the Act by segregating
the machinery provisions from the charging provisions.
[Para 9] (1051-E-G]

    1.4. Rule 211A of the Rules deal with procedure for      C
transport from Port, checkposts, etc., of any consignment
of goods despatched from any place outside West
Bengal and bound for any place outside West Bengal. In
the present case, the subject-goods have come from
Hamburg, a place outside West Bengal. They passed            D
through the customs barrier, the port barrier and the
sales tax barrier at Haldia [which is the first checkpost]
and, ultimately, were bound for Mumbai through the exit
checkpost at Chichira. In short, the goods were meant to
be in transit through the State of West Bengal and they      E
were bound for Mumbai, which is a place outside West
Bengal. In such a situation, Rule 211A of the Rules was
applicable. [Para 9] (1051-H; 1052-A-C]

   State of West Bengal vs. O.P. Lodha & Anr. (1997) 105     F
STC 561 (SC), referred to.

     2.1. If one reads Section 68(3) of the Act along with
Rule 211A(1) of the Rules, one finds that 'any person',
before taking delivery of the consignment from any port,
etc., is required to make a Declaration in the prescribed    G
Form and only on making the requisite Declaration, such
'any person' is allowed to transport the consignment of
goods through West Bengal to a place outside the State.
In other words, no person will be able to transit the
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    1034   SUPREME COURT REPORTS              [2010] 3 S.C.R.


A consignment of goods through the State of West Bengal
  without making a Declaration in the prescribed Form.
  Before taking delivery of such goods, such a person
  shall make a Declaration in the Form appended to Rule
  211A(1) of the Rules. Such a Declaration, therefore, is a
B condition precedent for taking delivery of the goods from
  Port, Airport, etc., to any place outside the State of West
  Bengal. In Rule 211A(1) of the Rules, the words used are
  "any person". These words include, a clearing and
  forwarding agent, a transporter and Customs House
c Agent or any other person, who makes a Declaration in
  the Form prescribed. In this connection, clause (4) of the
  Declaration is equally important. It mandates a statutory
  obligation on the declarant, who takes delivery of the
  consignment to transport such consignment to its
  destination outside West Bengal [which, in the present
0
  case, is Mumbai]. The declarant could be an importer or
  a clearing and forwarding agent or any person taking
  delivery of the consignment. This obligation is imposed
  on the declarant so that, in the event of detection of tax
  evasion, it would not be open to the declarant to deny his
E liability which under the Scheme of the Act is an absolute
  liability in the sense that if the decla:rant commits breach
  of his obligation under the Act read with the Rules, then
  a legal presumption is drawn against him, of course,
  subject to rebuttal. [Para 10] [1052-D-H; 1053-A-C]
F                      ~

       2.2. In the present case, the appellant was the
  declarant. He had appended his signature on the
  Declaration prescribed under Rule 211A(1) of the Rules.
  Under the procedure prescribed in the Rules, the
G declarant, before taking delivery of the goods from the
  port, has to make a Declaration in the prescribed Form
  in which he undertakes unequivocally to transport such
  consignment to its destination outSide the State of West
  Bengal. With such Declaration, the appellant becomes
H liable for a breach if he fails to produce the counter-
    KAMAL KUMAR AGARWAL v. C. C. T, WEST            1035
                 BENGAL

signed copy of the Declaration before the Assessing A
Authority. The Declaration is in, triplicate. One copy duly
 endorsed remains with the Sales Tax Authority at the first
 checkpost which, in the present case, is at Haldia. The
 remaining two counter-signed copies of the Declaration
 in the prescribed Form are carried by the declarant to the B
 exit checkpost where one copy is retained by the
 Authority and the other is given to the declarant. In the
 present case, the endorsed counter-signed copy of the
 Declaration was not produced by the appellant in the
 impugned proceedings before the Assessing Authority. c
 Non-production thereof raises a legal presumption of tax
 evasion. The reason is that when countersigned copy of
 the Declaration is not produced, law presumes, unless
 otherwise proved, that goods in question have been
 consumed, used or otherwise disposed of within the
                                                            0
State. In the present case, there is no evidence
whatsoever to rebut that presumption. There is no
material to indicate that the goods had crossed the
border at Chichira, except a confirmation from the
consignee that it has received the goods in question. This
Court cannot accept such confirmation from the E
consignee primarily because, under the Act, the importer/
consignee is not liable for the breach. The consignee is
not the declarant. In the present case, the consignee
[importer] has not undertaken any obligation to take the
goods in transit through the State of West Bengal to its F
destination outside the State. If one reads carefully
Section 68 of the Act, one finds that the provisions of
said section contemplate a regulatory measure to ensure
that there is no evasion of tax. Even if Section 68 of the
Act is treated as a machinery section, even then the said G
Section has been enacted to ensure that there is no
evasion of tax. In that sense, if one examines the Scheme
of the Act, it becomes clear that non-production of the
endorsed counter-signed copy of the Declaration before .
the Competent Authority would give rise to a legal H
    1036    SUPREME COURT REPORTS              [2010] 3 S.C.R.


A presumption of tax evasion, subject to such presumption
  being rebutted. [Para 10] [1053-C-H; 1054-A-D]

         3.1. On behalf of the appellant, it was urged that,
    under the Scheme of the Act, the word "transporter" has
    been defined by way of an Explanation to Section 72 of
8
    the Act. This argument was advanced to demonstrate that
    Sections 68, 71 B and Explanation (a) to Section 72 of the
    Act are applicable only to a transporter, i.e., the owner or
    any person having possession or control of a goods
    vehicle or the driver or any other person in charge of-,
C   such vehicle, who transports the goods on account of
    any other person or on his own account and, therefore,
    the said provisions do not apply to CHA. There is no merit
    in this argument. The appellant, as a declarant, could be
    an importer, a clearing and forwarding agent, etc., who
D   undertakes the delivery of the consignment for the
    purpose of transporting such consignment of goods to
    its destination outside West Bengal. Once such a
    Declaration is made by the appellant, he is a transporter,
    even assuming that the said provisions, namely, Sections
E   68, 71 B and Explanation (a) to Section 72, are applicable
    only to a transporter. [Para 11] [1054-E-H]

        3.2. Section 68 imposes a restriction when it says
   that no person shall transport any consignment of goods
F, from any Railway Station, Airport, Port, etc., except in
   accordance with such conditions and restrictions, as
   may be prescribed. In other words, the restriction on
   movement of goods under sub~section (1) of Section 68
   of the Act can only be lifted in a situation falling under
G sub-sections (3) and (4) of Section 68 of the Act. Under
   sub-section (3), any person, who seeks delivery of the
   consignment, is required to undertake an obligation that
   he is undertaking that delivery for transporting such
   consignment to its destination outside West Bengal.
   Section 71B of the Act is consequential upon
H
    KAMAL KUMAR AGARWAL v. C. C. T., WEST               1037
                 BENGAL

contravention of provisions of Section 68 when goods            A
transported are not available. It says that where the goods
are transported by a person in contravention of
restrictions or conditions prescribed under Section 68 of
the Act read with Rule 211A of the Rules, including the
Declaration therein, and if such goods are not available        B
for seizure, the Prescribed Authority shall, after giving
reasonable opportunity of being heard, impose a penalty.
That penalty is an amount not exceeding twenty five per
cent of the value of such goods. [Para 11] [1055-A-D]

     3.3. Section 71 B read with Section 68 of the Act          C
indicates that if the declarant undertakes delivery of the
consignment with an obligation to transport such
consignment of goods to its destination outside West
Bengal and if he contravenes any restrictions or
conditions prescribed under Rule 211A of the Rules read         D
with the Declaration, then such person becomes liable to
pay penalty on ad va/orem basis. In the present case, the
appellant has not produced before the Assessing
Authority any evidence to show that the consignment,
whose delivery has been taken from the Customs Port,            E
has gone out of West Bengal. He has not produced the
endorsed countersigned copy of the Declaration before
the Assessing Authority. In such a case, law presumes
that the subject-goods have been sold unauthorisedly
within the Stat!! of West Bengal and that is the sole           F
reason why penalty has been imposed on ad valorem
basis, i.e., on certain percentage of the value of the
goods. [Para 11] [1055-E-H]

     3.4. It was open to the assessee to prove to the           G
contrary and rebut the above legal presumption.
However, he has failed to do so. Further, when the
appellant signs the Declaration in terms of Rule 211A(1)
of the Rules, he, inter alia, undertakes an obligation to act
as a transporter. [Para 11] [1056-A-B]
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    1038    SUPREME COURT REPORTS               [2010] 3 S.C.R.


A      4. There is no merit in the submission of the appellant
  that sub-rule (6) of Rule 211A applies to a transporter and
  not to a CHA. If one reads sub-rule (6), it becomes clear
  that the said sub-rule refers to copies of the Declaration
  duly countersigned under sub-rule (4) to be produced
B before the Prescribed Authority at the exit checkpost.
  Sub-rule (4), in turn, refers to a Declaration being made
  under sub-rule (2) which, in turn, refers to the Declaration
  made under sub-rule (1) of Rule 211A of the Rules.
  Therefore, under sub-rule (4), such a Declaration is
c required to be countersigned by the Prescribed Authority
  and two copies thereof are returned to the declarant
  under sub-rule (1). In other words, sub-rule (6) applies to
  a declarant who could be a transporter, CHA, clearing and
  forwarding agent or any person taking delivery of the
  consignment of goods from the Port for despatch of the
0
  same outside West Bengal. Further, clause (4) of the
  Declaration refers to an obligation being undertaken by
  the declarant that the delivery is required to be taken by
  him for transporting such consignment to its destination
  outside West Bengal. Hence, with the making of the
E Declaration, the appellant undertook the obligation to
  transit the consignment to the destination outside the
  State for which the proof was the countersigned copy of
  the Declaration. [Para 12] (1058-A-E]

F                       Case Law Reference:
        (1997) 105 STC 561 (SC) referred to            Para 9
         CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    2757 of 2010.
G
        From the Judgment & Order dated 17.12.2007 of the High
    Court of Judicature at Calcutta in W.P.T.T. No. 633 of 2007.

        P.N. Mishra, M. Chandrasekharan, Sunil Gupta, Ritesh
    Agrawal, Siddharth Sengar, Tara Chandra Sharma, Neelam
H
     KAMAL KUMAR AGARWAL v. C. C. T., WEST                    1039
                  BENGAL

Sharma, Rupesh Kumar, Amarjeet Singh, Jatin Zaveri, Vibha              A
Narang for the appearing parties.

     The Judgment of the Court was deli·1ered by

     S.H. KAPADIA, J. 1. Leave granted.
                                                                       B
     2. Heard learned counsel on both sides.

    3. In this civil appeal arising out of special leave petition,
we are required to consider the scope and effect of Section
68(3) of the West Bengal Sales Tax Act, 1994 ['Act', for short]        C
read with sub-rule (6) of Rule 211A of the West Bengal Sales
Tax Rules, 1995 ['Rules', for short].

     4. On 8th September, 2001, M/s. Sanman Trade lmpex
Private Limited, Mumbai, appointed the appellant as it's
Customs House Agent [CHA] to clear the consignment of goods            D
imported from Hamburg. To enable the appellant to clear the
consignment, Mis. Sanman Trade lmpex Private Limited sent
all the relevant documents required for getting the goods
cleared from Kolkata to Mumbai. Mis. Sanman Trade lmpex
Private Limited also forwarded copy of the Declaration in Form         E
44A, duly endorsed, to the appellant to be produced before the
Sales Tax Authority posted at Haldia [for short, 'first checkpost'].
M/s. Sanman Trade lmpex Private Limited appointed M/s.
Brahmaputra Roadways, Kolkata, as it's transporter for onward
transportation of imported goods from Kolkata to Mumbai.               F
According to the appellant, the imported goods were to be
handed over by him to the transporter, M/s. Brahmaputra
Roadways, along with all the necessary documents for onward
transportation of goods to it's final destination after getting the
goods duly cleared from the Customs and Port Authorities.              G
According to the appellant, the goods were duly received by
M/s. Sanman Trade lmpex Private Limited on 30th October,
2001, which fact is duly certified by the letter from M/s. Sanman
Trade lmpex Private Limited informing him that the subject-
goods have been received by it intact and in good condition.
                                                                       H
    1040    SUPREME COURT REPORTS                   [2010] 3 S.C.R.


A         5. On 24th August, 2001, Mis. Paluck Trade Links, New
    Delhi, appointed the appellant as it's CHA to clear the
    consignment imported by it from London. At this stage, we may
    state that, in this civil appeal, we are concerned with two items,
    namely, Soda ash imported from Hamburg and Aluminium
B   Scrap imported from London. To continue the chronology of
    facts, M/s. Paluck Trade Links, New Delhi, also appointed M/
    s. Brahmaputra Roadways as it's transporter for onward
    transportation of the imported goods from Kolkata to Delhi. On
    July 30, 2002, a show-cause notice was issued to the appellant
c   by the Assistant Commissioner of Commercial Taxes alleging
    contravention of Section 68 of the Act. The appellant was asked
    to explain as to why penalty should not be levied for such
    contravention. In reply, the appellant contended that he had no
    obligation or liability under Section 68 of the Act in respect of
D   transportation of goods from Haldia to Chichira [exit checkpost].
    According to him, the goods could be moved only by the owner
    or the importer directly by itself or through it's transporter.
    According to the appellant, a CHA has no role to play in the
    movement of goods. He submitted that he was appointed by
    the importer only to get the documents cleared from the
E   Customs and Port Authorities and not for movement of goods
    for which it is the importer who appoints a transporter.
    Therefore, according to him, the notice was not maintainable
    in terms of Section 68 of the Act. The appellant further submitted
    that he was not required to keep an endorsed copy of the said
F   Declaration. In this .connection, reliance was placed on Rule
    211A(6) of the Rules. According to the ·appellant, under Rule
    211A(6) of the Rules, the endorsed copy had to be returned to
    the person transporting the goods for onward movement to it's
    final destination. Hence, according to him, the show-cause
G   notice was not maintainable.                             -

      6. By order dated 27th December, 2002, the Assistant
  Commissioner of Commercial Taxes imposed a penalty on the
  appellant for failure to produce the endorsed copy of the
H Declaration in terms-of Rule 211A(6) of the Rules. Being
    KAMAL KUMAR AGARWAL v. C. C. T., WEST                 1041
           BENGAL [S.H. KAPADIA, J.]

aggrieved ~y the order, the appellant preferred a revision         A
before the West Bengal Taxation Tribunal, which application
stood rejected. The decision of the West Bengal Taxation
Tribunal has been upheld by the High Court vide judgement
dated 17th December, 2007, hence, this civil appeal is filed
by the appellant.                                                  B

     7. For the sake of convenience, we quote hereinbelow the
relevant provisions of the Act:

    ~'68. Restriction on movement of goods.-- [1] To ensure that
    there is no evasion of tax, no person shall transport from     C
    any railway station, steamer station, airport, port, post
    office or any checkpost set up under section 75 or from
    any other place any consignment of goods except in
    accordance with such restrictions and conditions as may
    be prescribed.                                                 D

    [2]    xxx   xxx xxx         xxx

    [3] Subject to the restrictions and conditions prescribed
    under sub-section (1) or sub-section (2), any consignment
    of goods may be transported by any person after he             E
    furnishes in the prescribed manner such particulars in such
    form obtainable from such authority or in such other form
    as may be prescribed.

    69. Interception, detention and search of road vehicles and    F
    search of warehouse, etc.-- For the purpose of verifying
    whether any consignment of goods are being or have been
    transported in contravention of the provisions of section 68
    or section 73, the Commissioner, an Additional
    Commissioner, or any person appointed under sub-section        G
    (1) of section 3 to assist the Commissioner, may, subject
    to such restrictions as may be prescribed,--

     [a]   intercept, detain and search at any place, referred
           to in sub-section (1) of section 68, a road vehicle
           or river craft or any load carried by a person, or      H
    1042         SUPREME COURT REPORTS                 [2010] 3 S.C.R.


A          [b]     search any warehouse or at any other place in
                   which, according tor.is information, such goods so
                   transported in contravention of the provisions of
                   section 68 have been stored, or

           [c]     intercept, detain and search at any checkpost or
B
                   any other place referred to in sub-section (2) of
                   section 73, any goods vehicle.

       71. Penalty for transporting goods in contravention of
       section 68 or section 73.-- [1] If any goods are seized
C      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
D      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
E      centum of the value of such goods 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 sub-section shall not exceed--

F          [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 sub-section (1) of
                   section 20, in respect of such goods does not
                   exceed ten per centum;
G
           [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 r.entum.

H      [2] A penalty imposed under sub-section (1) shall be paid
KAMAL KUMAR AGARWAL v. C. C. T., WEST                 1043
       BENGAL [S.H. KAPADIA, J.]

by the person or the owner of goods, as the case may be,       A
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:         B

     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.
                                                               c
71 B. Penalty for contravention of the provisions of section
68 when goods transported are not available.-- [1] Where
the goods are, or have been, transported by a person,
dealer or casual trader in contravention of restrictions or
conditions prescribed under section 68 and such goods          D
are not available for seizure under sub-section (1) of
section 70, the Commissioner, or the Additional
Commissioner, shall, after giving such person, dealer or
casual trader a reasonable opportunity of being heard,
impose a penalty of a sum not exceeding twenty-five per        E
centum of the value of such goods.

[2] The procedure for imposition of penalty as prescribed
under section 71A shall apply mutatis mutandis in the
matter of imposition of penalty under this section.
                                                               F
72. Regulatory measures_Jor transport of goods through
West Bengal.

[1] When a goods vehicle, transporting any goods [other
than goods sales of which are tax-free under section 24],      G
enters into West Bengal, and such vehicle transporting
such goods is bound for any place outside West Bengal,
the transporter of such goods shall have to make, in the
prescribed manner, a declaration on the body of the
consignment note or on a document of like nature that the
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    1044     SUPREME COURT REPORTS               [2010] 3 S.C.R.


A      goods being so transported in his vehicle shall not be
       unloaded, delivered or sold in West Bengal and he shall
       also specify in such declaration the name of the last
       checkpost through which the vehicle transporting such
       goods shall move outside West Bengal.
B
       [2]    xxx     xxx    xxx   xxx

       [3]    xxx     xxx    xxx   xxx

       [4] The transporter shall carry with him the consignment
c      note or the document of like nature containing the
       declaration duly countersigned under sub-section (3) while ·
       transporting the goods through West Bengal and produce
       such consignment note or document of like nature before
       the Commissioner at the last checkpost that he reaches
D      before the exit of the vehicle with such goods from West
       Bengal, and the Commissioner shall, in the prescribed
       manner, endorse such consignment note or document of
       like nature evidencing exit from West Bengal of the vehicle
       transporting the same goods as are specified in such
       consignment note and return the same to the transporter.
E
       xxx            xxx    xxx   xxx

       [5] The Commissioner may, subject to such conditions and
       restrictions as may be prescribed, intercept at any place,
F      other than those referred to in sub-section (2) and sub-
       section (4), within West Bengal any goods vehicle and
       require the transporter to produce before him the
       declaration and other documents referred to in sub-section
       (2) and search such goods vehicle for verification of the
       goods with the declaration and other documents produced,
G
      'if any, by the transporter.

       [6] Where the Commissioner or the other authority referred
       to in sub-section (5) is satisfied, for reasons to be
       recorded in writing, that the transporter has contravened
H      the provisions of this section, he may, after giving the
    KAMAL KUMAR AGARWAL v. C. C. T., WEST                1045
           BENGAL [S.H. KAPADIA, J.]

    transporter a reasonable opportunity of being heard,         A
    impose, by an order to be passed in the prescribed
    manner, such penalty, not exceeding twenty-five per
    centum of the value of the goods so transported, as may
    be determined by him in accordance with the rules made
    under this Act.                                              B

    73. Measures to prevent evasion of tax on sales within
    West Bengal.

    [1] Where a transporter carries from any place in West
    Bengal in a goods vehicle any consignment of goods and , C1
    such vehicle is bound for any place outside West Bengal,_
    he shall, in addition to a document of title to the goods,
    carry with him, in respect of such goods,--

     [a]   where carriage is caused by a sale of such goods,     D
           two copies of the bill or cash memorandum issued
           by the seller of such goods, and a way bill in the
           prescribed form, or such document, containing
           description, quantity or weight and value of the
           goods and such other particulars as may be            E
           prescribed, or

     [b]   where carriage is caused otherwise than by a sale
           of such goods, two copies of the forwarding note,
           delivery challan or document of like nature, by
           whatever name called, issued by the owner or          F
           consignor of such goods, and a way bill in the
           prescribed form containing such particulars as may
           be prescribed.

    8. We may also quote hereinbelow Rule 211A of the Rules      G
along with the Declaration Form appended to the said Rule:

    "211A. Procedure for transport from railway station, port,
    airport etc. of any consignment of goods despatched from
    any place outside West Bengal and bound for any place
    outside West Bengal.-- (1) Where any consignment of          H
    1046    SUPREME COURT REPORTS                           [2010] 3 S.C.R.


A      goods other than those referred to in the Explanation to
       sub-rule (1), or in sub-rule (2), of rule 210 despatched from
       any place outside West Bengal reaches a railway station,
       port, airport or post office in West Bengal and such
       consignment of goods is bound for any destination outside
B      West Bengal, any person shall, before taking delivery of
       such goods from any such place, make a declaration in
       the format appended to this sub-rule.

                                   DECLARATION
c                      [See sub-rule (1) of rule 211A]

       To

       The ................... .

D      .................. Checkpost/Cha rge/Section/Division

       I, ......................... ,do hereby declare that --

       [1] I am a person who is importing or bringing into West
       Bengal/I am a person who is authorised by the importer
E      mentioned in the invoice/bill of lading/ bill of entry/air
       consignment note/railway receipt/ postal receipt to take
       delivery of the consignment of goods despatched from
       ................. , a place situated outside West Bengal;

F      [2] the said consignment of goods has reached a railway
       station, port, airport or post office in West Bengal,
       namely, .............. ;

       [3] the said consignment of goods is bound for a
       destination outside West Bengal, namely, ......... ;
G
        [4] the delivery of the said consignment is required to be
        taken by me for the purpose of transporting such
     ·· consignment of goods to its destination outside West
        Bengal;
H
KAMAL KUMAR AGARWAL v. C. C. T., WEST                   1047
       BENGAL [S.H. KAPADIA, J.]

[5] the said goods shall not be, either wholly or partly,        A
unloaded, delivered or sold in West Bengal;

[6] the statements in this declaration are true to the best
of my knowledge and belief;

       I am furnishing hereunder the particulars/ information    B
relating to the said consignment:-

 [a]   name, address and sales tax registration No., if any,
       of the consignor outside West Bengal: ............. .

 [b]   railway receipUbill of lading/air-consignment note/
                                                                 c
       postal receipt No. and date thereof: ................ .

 [c]   invoice No. and date: .............. .

 [d]   description of each commodity of the consignment:         o

 [e]   quantity/weight of each commodity in the
       consignment: ................. .

 [ij   value of the consignment with custom duty, freight        E
       etc.: .............. .

 [g]   name, address and sales tax registration No. of the
       consignee outside West Bengal: ................ .

 [h]   name, address, licence No. and telephone No. of           F
       the clearing and forwarding agent, if any, in West
       Bengal who is handling the consignment on behalf
       of the consignee: .............. .

 [i]   mode of transportation of the consignment to the          G
       destination outside West Bengal after taking
       delivery: ................ .

 m     registration No. of the road vehicle if such goods
       are transported to such destination by a road
                                                                 H
    1048         SUPREME COURT REPORTS                     [2010] 3 S.C.R.


A                  vehicle: ............. ..

           [k]     railway receipt/bill of lading/air-consignment note/
                   postal receipt No. and date: ............... .

           [I]     name of the exit checkpost: ............... .
B
           [m]     approximate date by which the vehicle shall move
                   outside West Bengal: ............... .

           [n]     where the goods are being transported by a road
                   vehicle,--
c
                   [i]      whether there is any possibility of
                            transhipment in West Bengal [please tick
                            whichever is applicable] yes/no;

D                  [ii]     ifyes.--

                            [A] place of such franshipment :..... .

                            [BJ vehicle No. after the transhipment is
                            effected: .............. .
E
                            [CJ name and address of the            transporter:


                            [DJ consignment note No. and date: ..... .

F                           Signature of the importer/clearing and
                            forwarding agent/the person taking delivery
                            of the consignment of goods from port,
                            airport, railway station, post office for
                            despatch of the same o.utside West Bengal
G
       Date: ....... .
                                               Full name of the signatory
                                                Address of the signatory
       Note:- Please strike out whatever is not applicable.
H
KAMAL KUMAR AGARWAL v. C; C. T., WEST                    1049
       BENGAL [S.H. KAPADIA. J.]

[2] The declaration made under sub-rule (1) shall be              A
produced in triplicate along with a copy of invoice, railway
receipt, bill of lading, air-consignment note, postal receipt
or a document of like nature before the Assistant
Commissioner, Commercial Tax Officer or Assistant
Commercial Tax Officer posted at the checkpost situated           B
in or around the railway station, port, airport or post office
from which the delivery of the consignment of goods as
referred to in sub-rule ( 1) is to be taken.
[3] If no checkpost has been set up in or around the railway
 station, port, airport or post office from which the delivery    C
of the consignment of goods as referred to in sub-rule (1)
is to be taken, the declaration under the said sub-rule (1)
shall be produced in triplicate by the person taking delivery
 of such goods along with a copy of invoice, railway receipt,
bill of lading, air-consignment note, postal receipt or a         D
document of like nature before the Assistant
Commissioner or Commercial Tax Officer having
jurisdiction over the area in which such railway station, port,
airport, or post office is situated. ·
[4] The declaration along with a copy of documents as             E
referred to in sub-rule (2) or sub-rule (3) produced before
any of the authorities mentioned in such sub-rules shall be
countersigned with his office seal by such authority and the
two countersigned copies of such declaration shall be
returned to the person referred to in sub-rule (1 ).              F
[5] For the purpose of section 69, the person referred to
in sub-rule (1) shall, while transporting any consignment of
goods on its way to destination outside West Bengal, stop
his vehicles on being asked by such Assistant
Commissioner or Commercial Tax Officer as the                     G
Commissioner may authorise in this behalf, at any place
and present before him, on demand, the countersigned
copies of the declaration referred to in the said sub-rule
along with invoice, consignment note, road challan or any
other document of like nature.                                    H
    1050    SUPREME COURT REPORTS                  [2010] 3 S.C.R.


A       [6LThe two copies of the declaration duly.countersigned
        under sub-rule (4) shall be produced before the Assistant
        Commissioner, Commercial Tax Officer or Assistant
        Commercial Tax Officer posted at the exit checkpost and
        such authority shall, on being satisfied updn verification of
B       the goods being transported with those specified in such
        declaration, ~ndorse such declaration, retain one copy of
        such endorsed declaration and return the other copy of it
        to the person transporting such goods for onward
        movement to the place of destination outside West Bengal
c       after recording in a register the particulars given in the
        endorsed declaration and other connected documents and
        also the particulars of transhipment of the goods, if any, in
        West Bengal.
        [7] For the purposes of interception, detention, search and
D       seizure by any authority under this rule, the procedure in
        such matters contained in the provision of rule 212 shall
        apply mutatis mutandis.
        [8] Any infringement of any provision of this rule by the
        person referred to in sub-rule (1) shall be deemed to be a
E       contravention of the provisions of section 68 by the person
        referred to in the said sub-rule."
       9. The Act has been enacted to consolidate and amend
  the laws relating to the levy of tax on sale or purchase of goods
F in the State of West Bengal. Under Explanation (2) to Section
  2(10) of the Act, an agent for handling or transporting of goods
  or handling of document of title to goods is a "dealer". Agents
  of all types have been included in the definition of the word
  "dealer" under Section 2(10) of the Act. [See State of West
G Bengal vs. O.P. Lodha & Anr. (1997) 105 STC 561 (SC)].
  Section 68 occurs in Chapter VIII of the Act, which deals with
  maintenance of accounts; search and seizure of accounts;
  measures to regulate transport of goods; checkposts; seizure
  of goods; imposition of penalty, etc. To ensure that there is no -
H evasion of tax, Section 68 of the Act, inter alia, states that no
    KAMAL KUMAR AGARWAL v. C. C. T., WEST                  1051
           BENGAL [S.H. KAPADIA, J.]

person shall transport from any Port or any checkpost or from       A
any other place any consignment of goods, except in
accordance with such restrictions and conditions, as may be
prescribed. [See Section 68(1) of the Act] The important words
which occur in Section 68(1) of the Act are "no person". It does
not refer to the word "transporter". This aspect is of some         B
significance because Section 68(1) of the Act puts a restriction
on the movement of goods. The checkposts are designed and
meant to prevent the evasion of sales tax and other dues. This
restriction stands lifted subject to the compliance of certain
provisions of the Act. Under Section 68(3) of the Act, any          c
consignment of goods may be transported by any person after
he furnishes in the prescribed manner such particulars in such
Form as may be prescribE(9· The expression "any person" in
sub-section (3) of Section 68 of the Act would include, a
clearing and forwarding agent, a transporter or any person who      0
makes a Declaration in the prescribed manner. Therefore, sub-
section (3) is not confined to a transporter, as is sought to be
argued on behalf of the appellant. Secondly, sub-section (3)
indicates that any consignment of goods may be transported
by any person after he furnishes particulars in the prescribed
                                                                    E
Form. In this connection, we may refer to Rule 211A of the Rules.
The said Rule occurs in Chapter XV of the Rules, which deals
with restrictions on transport of any consignment of goods,
regulatory measures for movement of such goods in transit
through West Bengal, interception, search, seizure and penalty
for contravention, and certain measures to prevent evasion of       F
tax on sales within West Bengal. If one reads Chapter VIII of
the Act with Chapter XV of the Rules, one finds that both
Chapters deal with regulatory measures to avoid tax evasion.
Therefore, in our view, the machinery provisions under the Act
constitute an integral part of the charging provisions. These       G
regulatory measures are intended to ensure that there is no
evasion of tax. Therefore, one cannot read the Act by
segregating the machinery provisions from the charging
provisions. Rule 211A of the Rules deal with procedure for
                                                                    H
    1052    SUPREME COURT REPORTS                  [2010] 3 S.C.R.


A transport from Port, checkposts, etc., of any consignment of
  goods despatched from any place outside West Bengal and
  bound for any place outside West Bengal. In the present case,
  the subject-goods have come from Hamburg, which is a place
  outside West Bengal. They passed through the customs
B barrier, the port barrier and the sales tax barrier at Haldia [which
  is the first checkpost] and, ultimately, were bound "for Mumbai
  through the exit checkpost at Chichira. In short, the goods were
  meant to be in transit through the State of West Bengal and ~
  they were bound for Mumbai, which is a place outside West
c Bengal. In such a situation, Rule 211A of the Rules was
  applicable.
          10. In this case, we are required to ascertain whether the
    appellant, who has signed the Declaration in the prescribed
    Form, has complied with the said Rule? If not, the consequence
D   of non-compliance? If one reads Section 68(3) of the Act along
    with Rule 211A(1) of the Rules, one finds that 'any person',
    before taking delivery of the consignment from any port, etc.,
    is required to make a Declaration in the prescribed Form and
    only on making the requisite Declaration, such 'any person' is
E   allowed to transport the consignment of goods through West
    Bengal to a place outside the State. In other words, no person
    will be able to transit the consignment of goods through the
    State of West Bengal without making a Declaration in the
    prescribed Form. Before taking delivery of such goods, such
F   a person shall make a Declaration in the Form appended to
    Rule 211A(1) of the Rules. Such a Declaration, therefore, is a
    condition precedent for taking delivery of the goods from Port,
    Airport, etc., to any place outside the State of West Bengal. In
    this connection, once again, we may emphasise that in Rule
G   211A(1) of the Rules, the words used are "any person". These
    words include, a clearing and forwarding agent, a transporter
    and Customs House Agent or any other person, who makes a
    Decl~ration in the Form prescribed. In this connection, clause
    (4) of' the Declaration is equally important. It mandates a
H   statutofy\obligation on the declarant, who takes delivery of the
              '.
     KAMAL KUMAR AGARWAL v. C. C. T., WEST                       1053
            BENGAL [S.H. KAPADIA, J.]

 consignment to transport such consignment to its destination             A
 outside West Bengal [which, in the present case, is Mumbai].
 The declarant could be an importer or a clearing and forwarding
 agent or any person taking delivery of the consignment. This
 obligation is imposed on the declarant so that, in the event of
 detection of tax evasion, it would not be open to the declarant          B
 to deny his liability which, in our opinion. under the Scheme of
 the Act is an absolute liability in the sense that if the declarant
 commits breach of his obligation under the Act read with the
 Rules, then a legal presumption is drawn against him, of course,
 subject to rebuttal. It is important to note, in this connection, that   c
 the appellant in this case was the declarant. He had appended
 his signature on the Declaration prescribed under Rule 211A(1)
 of the Rules. At this stage, we may point out that, under the
procedure prescribed in the Rules, the declarant, before taking
delivery of the goods from the port, has to make a Declaration            D
in the prescribed Form in which he undertakes unequivocally
to transport such consignment to its destination outside the
State of West Bengal. With such Declaration. the appellant
becomes liable for a breach if he fails to produce the counter-
signed copy of the Declaration before the Assessing Authority.
                                                                          E
The Declaration is in triplicate. One copy duly endorsed
remains with the Sales Tax Authority at the first checkpost
which, in the present case, is at Haldia. The remaining two
counter-signed copies of the Declaration in the prescribed Form
are carried by the declarant to the exit checkpost where one
copy is retained by the Authority and the other is given to the           F
declarant. In the present case. the endorsed counter-signed
copy of the Declaration has not been produced by the appellant
in the impugned proceedings before the Assessing Authority.
Non-production thereof raises a legal presumption of tax
evasion. The reason is that when countersigned copy of the                G
Declaration is not produced, law presumes, unless otherwise
proved, that goods in question have been consumed, used or
otherwise disposed of within the State. In the present case,
there is. no evidence whatsoever to rebut that presumption.
There is no material to indicate that the goods had crossed the           H
    1054     SUPREME COURT REPORTS                  [2010] 3 S.C.R.


A border at Chichira, except a confirmation from the consignee
  that it has received the goods in question. We cannot accept
  such confirmation from the consignee primarily because, under
  the Act, the importer/consignee is not liable for the breach. The
  consignee is not the declarant. In the present case, the
B consignee [importer] has not undertaken any obligation to take
  the goods in transit through the State of West Bengal to its
  destination outside the State. If one reads carefully Section 68
  of the Act, one finds that the provisions of said section
  contemplate a regulatory measure to ensure that there is no
c evasion of tax. Even if Section 68 of the Act is treated as a -
  machinery section, even then the said Section has been
  enacted to ensure that there is no evasion of tax. In that sense,
  if one examines the Scheme of the Act, it becomes clear that
  non-production of the endorsed counter-signed copy of the
D Declaration before the Competent Authority would give rise to
  a legal presumption of tax evasion, subject to such presumption .
  being rebutted.

         11. On behalf of the appellant, it was urged that, under the
    Scheme of the Act, the word "transporter" has been defined by
E   way of an Explanation to Section 72 of the Act. This argument
    was advanced to demonstrate that Sections 68, 71 B and
    Explanation (a) to Section 72 of the Act are applicable only to
    a transporter, i.e., the owner or any person having possession
    or control of a goods vehicle or the driver or any other person
F   in charge of such vehicle, who transports the goods on account
    of any other person or on his own account and, therefore, the
    said provisions do not apply to CHA. We find no merit in this
    argument. As stated above, the appellant, as a declarant, could
    be an importer, a clearing and forwarding agent, etc., who
G   undertakes the delivery of the consignment for the purpose of
    transporting such consignment of goods to its destination
    outside West Bengal. Once such a Declaration is made by the
    appellant, he is a transporter, even assuming that the said
    provisions, namely, Sections 68, 71 B and Explanation (a) to
H   Section 72, are applicable only to a transporter. The matter can
     KAMAL KUMAR AGARWAL v. C. C. T., WEST                  1055
                BENGAL [S.H. KAPADIA, J.]
             •
be looked at from another angle. Section 68 imposes a               A
 restriction when it says that no person shall transport any
consignment of goods from any Railway Station, Airport, Port,
etc., except in accordance with such conditions and restrictions,
as may be prescribed. In other words, the restriction on
movement of goods under sub-section (1) of Section 68 of the        B
Act can only be lifted in a situation falling under sub-sections
(3) and (4) of Section 68 of the Act. Under sub-section (3), any
person, who seeks delivery of the consignment, is required to
 undertake an obligation that he is undertaking that delivery for
transporting such consignment to its destination outside West       c
Bengal. Section 71 B of the Act is consequential upon
contravention of provisions of Section 68 when goods
transported are not available. It says that where the goods are
transported by a person in contravention of restrictions or
conditions prescribed under Section 68 of the Act read with
                                                                    D
Rule 211A of the Rules, including the Declaration therein, and
if such goods are not available for seizure, the Prescribed
Authority shall, after giving reasonable opportunity of being
heard, impose a penalty. That penalty is an amount not
exceeding twenty five per cent of the value of such goods.
                                                                    E
Section 71B read with Section 68 of the Act indicates that if
the declarant undertakes delivery of the consignment with an
obligation to transport such consignment of goods to its
destination outside West Bengal and if he contravenes any
restrictions or conditions prescribed under Rule 211A of the
Rules read with the Declaration, then such person becomes           F
liable to pay penalty on ad valorem basis. In the present case,
the appellant has not produced before the Assessing Authority
any evidence to show that the consignment, whose delivery has
been taken from the Customs Port, has gone out of West
Bengal. He has not produced the endorsed countersigned copy         G
of the Declaration before the Assessing Authority. In such a
case, law presumes that the subject-goods have been sold
unauthorisedly within the State of West Bengal and tnat is the
sole reason why penalty has been imposed on ad valorem
basis, i.e., on certain percentage of the value of the goods. It    H
    1056     SUPREME COURT REPORTS                  [2010] 3 S.C.R.


A   was open to the assessee to prove to the contrary and rebut
    the above legal presumption. However, he has failed to do so.
    Further, when the appellant signs the Declaration in terms of
    Rule 211A(1) of the Rules, he, inter alia, undertakes an
    obligation to act as a transporter. Under Section 72 of the Act,
B   if any person transports a consignment from any place outside
    the State and, in order to go to its destination at a place outside
    the State, seeks to pass through the State of West Bengal, he
    is required to make a Declaration, as prescribed in Rule 223(1)
    of the Rules on the body of the consignment note before the
c   appropriate Authority of the first checkpost for his verification ·
    and counter-signature. Further, the transporter is required to
    carry such a Declaration and other documents and produce
    them before the Prescribed Authority of the last checkpost for
    his verification. In our view, Section 72 of the Act read with Rule
D   223(1) of the Rules has no application to the facts of the present
    case. Section 72, no doubt, deals with goods being transported
    through the State of West Bengal; however, the said section .
    specifically refers to entry of a "goods vehicle" into West Bengal
    and such vehicle transporting the goods is bound for a place
    outside West Bengal. In the present case, we are concerned
E   with goods coming from Hamburg in Germany into the Port· in
    West Bengal, hence, Section 72 of the Act has no application.
    Moreover, the word "transporter'' has been defined specifically
    for the purpose of only Sections 72 and 73 of the Act and has
    not been defined for the entire Act. In the circumstances, it is
F   not open to the appellant to say that there is a clear dichotomy
    between a transporter and a CHA/clearing and forwarding
    agent. In the present case, we are concerned with the
    contravention of the provisions of Section 68 of the Act by a
    person who makes a Declaration in the prescribed Form in
G   terms of Rule 211A(1) of the Rules.

      12. One of the key arguments advanced on behalf of the
  appellant herein was that Rule 211A(6) of the Rules applies to
  the transporter/carrier, who is in possession of two
H countersigned copies of the Declaration when the goods are
     KAMAL KUMAR AGARWAL v. C. C. T., WEST                   1057
            BENGAL [S.H. KAPADIA, J.]

 being transported across the exit checkpost of West Bengal,          A
 because it is the transporter who gets back the endorsed
 Declaration as "a person transporting the goods for onward
  movement". According to the appellant,. Rule 211A(8) of the
  Rules has no application as the said sub-rule is consequential
 to the applicability of sub-rule (6) of Rule 211A. which sub-rule    B
  is applicable only in the case of a transporter. In other words,
 according to him, sub-rule (6) casts an obligation on the
 transporter and not upon the CHA, whose assignment is
 confined to the precincts of the Customs Port. We find no merit
 in this submission. Under sub-rule (2) of Rule 211A of the Rules,    c
 the Declaration, in triplicate, is required to be produced along
 with the copy of invoice, railway receipt, bill of lading or
 document of like nature before the Prescribed Authority posted
 at the checkpost situated in or around the Railway Station, Port,
 Airport or Post Office from which the delivery of the                D
 consignment of goods is to be taken. Sub-rule (3) of Rule 211A
 of the Act deals with a situation where there is no checkpost
 set up in or around the Railway Station, Port, etc. We are not
 concerned with that situation in this case. Under sub-rule (5), it
 is, inter alia, provided that, in cases of interception, detention
                                                                      E
 and search of vehicles falling under Section 69 of the Act, the
 declarant under sub-rule (1) shall, while transporting any
 consignment on it's way to the destination outside West Bengal,
shall stop his vehicle on being asked by the Prescribed
Authority to produce the countersigned copies of the
 Declaration referred to in sub-rule (1) of Rule 211A along with      F
the invoice, consignment note, road challan or any other
document of like nature. Therefore, sub-rule (5) squarely applies
to a declarant under sub-rule (1). Under sub-rule (6), two copies
of the Declaration duly countersigned shall be produced before
the Prescribed Authority posted at the exit checkpost and such        GI
Authority shall, on being satisfied upon verification of the goods
being transported with those specified in the Declaration,
endorse such Declaration, retain one copy of such endorsed
Declaration with it and return the other copy to the person
transporting such goods for onward movement to the place of           H
     1058     SUPREME COURT REPORTS                  [2010] 3 S.C.R.


A destination outside West Bengal after recording in his register
   the particulars given in the Declaration. As stated above, it is
   the case of the appellant that sub-rule (6) of Rule 211A applies
   to a transporter and not to a CHA. We find no merit in this
   submission. If one reads sub-rule (6), it becomes clear that the
B said sub-rule refers to copies of the Declaration duly
   countersigned under sub-rule (4) to be produced before the
   Prescribed Authority at the exit checkpost. Sub-rule (4), in turn,
   refers to a Declaration being made under sub-rule (2) which,
   in turn, refers to the Declaration made under sub-rule (1) of Rule
c  211A of the Rules. Therefore, under sub-rule (4), such a
   Declaration is required to be countersigned by the Prescribed
   Authority and two copies thereof are returned to the declarant
   under sub-rule (1 ). In other words, sub-rule (6) applies to a
   declarant who could be a transporter, CHA, clearing and
D forwarding agent or any person taking delivery of the
   consignment of goods from the Port for despatch of the same
   outside West Bengal. Further, as stated above, clause (4) of
   the Declaration refers to an obligation being undertaken by the
   declarant that the delivery is required to be taken by him for
!: transporting such consignment to its destination outside West
   Bengal. Hence, with the making of the Declaration, the appellant
   undertook the obligation to transit the consignment to the
   destination outside the State for which the proof was the
   countersigned copy of the Declaration.

f=     13. Before concluding, we may state that a request was
  made by the learned senior counsel appearing on behalf of the
  appellant that, in the event of this Court rejecting this civil
  appeal, the Department may give the benefit of instalments to
  the appellant to make payment towards impugned penalty. We
G do not wish to express any opinion thereon.

          14. Accordingly, we find no merit in this civil appeal, which
     is, accordingly, dismissed with no order as to costs.

     B.B.B.                                       Appeal dismissed.
H