Case: State Of W.B.  Vs. Md. Khalil

and also to impose penalty, in the prescribed manner, not exceeding ten times the tax assessed by it on the dealer. The first proviso says that the assessment of the tax has to be after inspection and verification of such goods. It also provides for what can be termed as the "best judgment assessment" when such goods are not available for inspection and examination for the reason that either they have been disposed of or concealed or mixed with any other goods. The second proviso requires that the dealer be given a reasonable opportunity of being heard before the imposition of penaltyA plain reading of sub-section (6) shows that it empowers the prescribed authority to require any dealer to produce before it any accounts, register or document for examination and to furnish any information relating to the stock of goods or purchases, sales or deliveries of goods by the dealer or relating to any other matter, as may be deemed necessary, for the purpose of Section 14 of the Entry Tax Act. The prescribed authority is also empowered to require any person who has in his possession, custody or control any specified goods or through whom the specified goods are suspected by the prescribed authority to have passed, to produce before it any register, accounts or document for examination with a view to ascertaining whether any tax leviable under this Act is being or has been assessed or duly paid 14. It may be noticed here that the liability to pay the tax under sub-section (1) and the tax penalty under sub-sections (2) and (3) is on the dealer. It is only in a case falling under clause (b) of sub-section (6) of Section 14, that a person other than a dealer is dealt with and a duty is cast on him to produce documents, accounts register etc. when he is required to do so by the prescribed authority. The dealer is the person required to deliver the statutory declaration and is also answerable for the tax as well as for the penalty imposed under the Entry Tax Act. Therefore, the first thing we have to see is whether the respondent is a "dealer" within the meaning of that term. We have extracted above the definition of the term "dealer" and noted four categories of persons who fall within the meaning of that term. A person who is in possession of the specified goods does not fall within the meaning of that term. It follows that the respondent is not a "dealer" within the meaning of the Entry Tax ActIn the instant case, notice was issued to the respondent under Section 14(3) of the Entry Tax Act. It has been held that he is not a "dealer". That apart, for purposes of assessment of specified goods, sub-section (1) of Section 14 of the Entry Tax Act provides for assessment of specified goods on the basis of the declaration of the dealer, albeit after making such verification of the specified goods as the prescribed authority may consider necessary. Sub-section (2) of Section 14 of the Entry Tax Act provides for assessment on inspection and examination of specified goods where the dealer has failed or omitted to make the declaration as required by Section 13 of the Act. For assessing entry tax under sub-section (3) of Section 14 of the Entry Tax Act, it has to be shown (i) the specified goods have been brought into the Calcutta Metropolitan Area; (ii) such goods have been brought without payment of tax leviable thereon under the Act; (iii) such goods are found in possession of the respondent 15. It must be borne in mind that before the tax could be imposed under sub-section (3) of Section 14 of the Entry Tax Act, the authority will have to be satisfied of the requirements noted above. Without there being any material to show that the specified goods in the possession of the respondent have been brought into the Calcutta Metropolitan Area and that they were brought without payment of any tax leviable thereon, no tax can be levied under sub-section (3) of Section 14 even on a dealer. It cannot be lost sight of that the tax under the Entry Tax Act is a tax on the entry of the specified goods into the Calcutta Metropolitan Area and not on possession of the specified goods within the Calcutta Metropolitan Area 16. However, the contention of Mr. Chakravarty is that when specified goods are found in possession of a person and when he, on being required to produce before the authority any accounts, register or document under sub-section (6) of Section 14, has failed to do so, a presumption arises that the specified goods have been brought by him into the Calcutta Metropolitan Area without payment of tax. We are afraid, we cannot accede to this contention. A presumption is a rule of law which requires the court to draw a given conclusion on proof or existence of certain facts and leaves it to the party disputing the conclusion to rebut the same. Presumptions may be of fact or of law. A presumption is an inference sanctioned by law which does not logically or necessarily follow from the proved facts. For raising a presumption, as submitted by Mr. Chakravarty, there must be a specific provision in the Entry Tax Act. No provision in the said Act is brought to our notice which may enable the authority to raise the presumption that a possessor of the specified goods, who fails to produce before the authority his accounts, register or document on being required to do so, has imported the goods into the Calcutta Metropolitan Area without payment of tax. On the facts and circumstances of the case, it is impossible for a court to infer that the respondent has imported the goods into the Calcutta Metropolitan Area without payment of taxIn the light of the above discussion, we cannot but uphold the impugned judgments of the Tribunal. 17.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]We are afraid, we cannot accede to this contention. A presumption is a rule of law which requires the court to draw a given conclusion on proof or existence of certain facts and leaves it to the party disputing the conclusion to rebut the same. Presumptions may be of fact or of law. A presumption is an inference sanctioned by law which does not logically or necessarily follow from the proved facts. For raising a presumption, as submitted by Mr. Chakravarty, there must be a specific provision in the Entry Tax Act. No provision in the said Act is brought to our notice which may enable the authority to raise the presumption that a possessor of the specified goods, who fails to produce before the authority his accounts, register or document on being required to do so, has imported the goods into the Calcutta Metropolitan Area without payment of tax. On the facts and circumstances of the case, it is impossible for a court to infer that the respondent has imported the goods into the Calcutta Metropolitan Area without payment of taxIn the light of the above discussion, we cannot but uphold the impugned judgments of the Tribunal.