DEB KUMAR CHAKRABORTI,TECHNICAL MEMBER -
(2.) IN this application Under Section 8 of the West Bengal Taxation Tribunal Act, 1987, the petitioner has challenged the seizure of canopy materials by the Sales Tax Officer, Siliguri Range on April 29, 2008 and imposition of penalty of Rs. 1,43,000 on April 30, 2008 for the alleged contravention of the provision of Section 81 of the West Bengal Value Added Tax Act, 2003. The petitioner, Mr. Krishna Pada Poddar, is the proprietor of M/s. Hi -Tech Engineering having its office at P -25, C.I.T. Road, Scheme -VII -M, Kolkata 700 054. The petitioner is registered under the West Bengal VAT Act, 2003 and Central Sales Tax Act, 1956 as a works contractor. In course of business the petitioner was sending a consignment of goods to M/s. Bharat Petroleum Corporation Ltd., at their outlet at Haitgaon in Assam through vehicle No. WB -23A -9960. The said loaded truck was intercepted at Ghosh Pukur Check point on April 27, 2008 by the Assistant Sales Tax Officer, Siliguri Range (in short, the ASTO, SRG), respondent No. 1. On April 29, 2008 the consignment was seized for alleged contravention of Section 81 of the West Bengal VAT Act, 2003. A penalty of Rs. 1,43,000 was also imposed on April 30, 2008 Under Section 77 of the said Act estimating the value of goods at Rs. 2,86,000. Being aggrieved the petitioner has filed this revision application before this Tribunal.
(3.) MR . S. Choraria, learned advocate of the petitioner, has submitted that the petitioner was sending certain materials to Assam for the purpose of construction of an outlet of Bharat Petroleum Corporation Ltd. (in short, "the BPCL"). The said goods were being sent to Assam not by way of sale but only for the purpose of construction. The learned advocate has pointed out that Section 81(1)(b) of the West Bengal VAT Act, 2003 provides that where carriage is caused otherwise than by way of sale the driver should carry two copies of the forwarding note, delivery challan or document of like nature and a way -bill. It is claimed that admittedly the driver was carrying 3 (three) copies of challan No. HE -266 dated April 24, 2008, 2 (two) copies of consignment note No. 155 dated April 24, 2008 and one copy of Assam Government's road permit in form 62 and as such, the petitioner complied with the provisions of Section 81(1)(b) of the West Bengal VAT Act, 2003. It is further claimed that the disputed goods were being sent to Assam in pursuance of purchase Order No. 4502168577 dated March 27, 2008. The learned advocate has referred the certificate issued by the BPCL dated April 26, 2007 (it should be April 26, 2008 in lieu of April 26, 2007) annexed at page 14 of the main application. The original purchase Order is also enclosed at page 25. The learned advocate has admitted that the original purchase Order dated March 27, 2008 was not handed over to the driver as the concerned authority of BPCL who was to issue the certificate was on leave, but the BPCL was in urgent need of completion of the job and therefore insisted on completing the job as early as possible, that is why the original purchase Order could not be produced at the time of detention, seizure as well as at the time of imposition of penalty, but a certificate issued by the BPCL was produced at the time of seizure as well as at the time of hearing of penalty proceedings but the concerned authority did not accept the certificate as relevant to the disputed transaction. The learned advocate has claimed that since the petitioner is not a registered dealer in Assam, BPCL issued a way -bill which was irregular according to provisions of law. But it is urged that the certificate issued by BPCL along with other documents like challan, consignment note, etc., should have been given due weightage to understand the true nature of the disputed transaction. In view of above facts, the learned advocate has submitted that the said purported seizure of goods by respondent No. 1 on April 29, 2008 Under Section 76 of the West Bengal VAT Act, 2003 and the purported imposition of penalty Under Section 77 of the said Act are bad, illegal and erroneous, without and/or in excess of jurisdiction and are liable to be quashed.
(4.) THE respondents contested the case by filing an affidavit -in -opposition. Mr. T.N. Banerjee, learned State Representative, has relied on the Order of seizure dated April 29, 2008, the Order of imposition of penalty dated April 30, 2008 and the affidavit -in -opposition. The learned State Representative has contended that it was not understood from the documents produced at the time of interception whether it was an inter -State sale or stock transfer. It is pointed out that if movement of goods takes place from one State to another in pursuance of an agreement, then it is an inter -State sale. The learned State Representative has also pointed out that the certificate issued by BPCL annexed at page 18 of the application states that "formal work Order will be issued later on" while the purchase Order No. 4502168557 annexed at page 25 reveals the date of purchase Order is March 27, 2008. The learned State Representative has claimed that the contradictory statement was made by the petitioner to evade payment of tax. Even, it is argued by the learned State Representative, if it is a case of stock transfer no forwarding note/stock transfer note was issued by the petitioner as per provisions of Section 81(1)(b) of the Act. The points of adjudication in this case are:
(i) whether the disputed transaction is inter -State sale or stock transfer, and
(ii) whether the required provisions Under Section 81 of the Act were complied or not.;