Decided on May 14,2009

Goel Brothers And Rajesh Agarwal Appellant
West Bengal Sales Tax Settlement Commission And Ors. Respondents


Pradipta Ray, J. (Chairman) - (1.) AS a similar question of law is involved in both these applications these two applications have been heard one after another and are being disposed of by this common judgment.
(2.) M /s. Goel Brothers, the petitioner in RN -303 of 2009 and Rajesh Agarwal, the petitioner in RN -304 of 2009 are carrying on business of buying and selling of PVC pipes and its fittings. While Goel Brothers buy those goods in the State of West Bengal, Rajesh Agarwal has been importing such goods from outside West Bengal. Under the West Bengal Sales Tax Act, 1994 (hereinafter referred to as, "the 1994 Act") PVC pipes and its fittings were covered by serial No. 123 of Schedule IV and taxable at four per cent. The petitioners were duly paying tax at four per cent on PVC pipes and their fittings. The West Bengal Value Added Tax Act, 2003 (hereinafter referred to as, "the VAT Act") replaced 1994 Act and came into operation on and from April 1, 2005. PVC pipes were included in serial No. 54 of Schedule C of the VAT Act. However, the fittings of the pipes were not originally included in the said serial No. 54. Serial No. 54 was amended by West Bengal Act XIII of 2005 with effect from May 1, 2005. By the said amendment fittings of the pipes covered by serial No. 54 were also included. Consequently, for one month, i.e., from April 1, 2005 to April 30, 2005 fittings of pipes were not within any entry of Schedule C and chargeable to tax at 12.5 per cent as residuary items.
(3.) THE petitioners have claimed that as they were paying tax at four per cent under the 1994 Act on the fittings of PVC pipes they continued to do so although such fittings were not included in Schedule C of the VAT Act. Assessments for the year 2005 -06 were taken up by the respective assessing authorities. Admittedly the petitioners paid tax on the fittings of PVC pipes at four per cent although during the aforesaid period of one month, i.e., from April 1 to April 30, 2005 tax at 12.5 per cent was payable. Obviously, the assessing authorities charged tax on fittings of PVC pipes at 12.5 per cent for the aforesaid one month, raised additional demands and levied interest. Against the said assessment orders the petitioners preferred appeals before the appellate authorities. During pendency of the appeals the petitioners submitted applications for settlement before the West Bengal Value Added Tax Settlement Commission (in short, "the Settlement Commission") set up under Section 8A of the VAT Act. Those applications under Section 8B of the VAT Act were rejected by the Settlement Commission on the ground that those applications were outside the purview of Explanation (b) to Section 8B(2) of the VAT Act. Being aggrieved by such rejection by the Settlement Commission the petitioners have moved these two applications before this Tribunal.;

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