Decided on November 18,2010

Highway Movers Appellant
S.T.O., Chichira Check -Post And Others Respondents


Pranab Kumar Deb J. (Chairman). - (1.) THIS instant application under section 8 of the West Bengal Taxation Tribunal Act, 1987, has been filed, challenging the seizure of motor grader under section 76 of the Value Added Tax Act, 2003 and the order of penalty dated April 22, 2009, passed by the Sales Tax Officer, Chichira check -post under section 77 of the Act, 2003. The contention of the petitioner, as made out in the application, was to the effect that pursuant to a work order dated September 21, 2008 issued by R. S. V. Infrastructure (P.) Ltd., the petitioner despatched one motor grader to Hatgamhria (Chaibasa), Jharkhand on or about September 23, 2008. The aforesaid motor grader was used on behalf of R. S. V. Infrastructure (P) Ltd. from September 26, 2008 to September 31, 2008. On the completion of the work, the petitioner raised its bill for hire charges for the period from September 26, 2008 to September 30, 2008 and also for the period from October 1, 2008 to October 31, 2008. Efforts were also made to bring the motor grader back to West Bengal. The motor grader loaded on a truck hearing No. NL -02G/0302 reached Chichira check -post on November 24,2008. It was alleged that despite production of the challan and other documents, the Sales Tax Officer of Chichira check -post seized the motor grader for alleged violation of section 73 of the Value Added Tax Act.
(2.) IN the wake of such seizure of motor grader, a separate penalty proceeding was initiated by issuance of notice in form No. 60. Representative of the petitioner not having turned up on the date of hearing, the Sales Tax Officer went on with the penalty proceeding and eventually slapped a penalty of Rs. 14,56,000 on the petitioner, determining the value of the goods at Rs. 29,12,000. Aggrieved by the seizure of the motor grader and imposition of penalty, the petitioner approached the Tribunal for quashing the order of seizure as well as the imposition of penalty.
(3.) APPEARING on behalf of the petitioner, Mr. Chakraborty has submitted that the article having been brought back to the State of West Bengal after its user for a limited purpose, its user in terms of the agreement cannot come within the purview of "sale" as defined in the Value Added Tax Act, 2003. Drawing the attention of the court to the sales invoices placed at annexure A, Mr. Chakraborty has submitted that the article in question was lawfully purchased by the petitioner from a concern, called Vaishnavi Engineering. It is the contention of Mr. Chakraborty that the motor grader so purchased by the petitioner was sent to Jharkhand following order being placed with it by the concern called RSV Infrastructure (P.) Ltd. It is argued that the bills placed at annexure C will also bear out the stand of the petitioner that the motor grader of the petitioner was being used for a limited period by the concern RSV, with the petitioner retaining possession of it all through. It is submitted that the very fact that the article in question is still with the petitioner, as evidenced by the initial certificate, nullifies the contention of the respondent that such transportation of goods was deliberately made to evade payment of tax. It is the contention of Mr. Chakraborty that since the motor grader was not brought back in the State of West Bengal for the purpose of sale, there was no question of payment of tax under the VAT Act, 2003. The imposition of penalty, as contended by Mr. Chakraborty, was just an abuse of the process of law.;

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