Dipak Chakraborti, Member (T) - (1.) IN this petition filed under section 8 of the West Bengal Taxation Tribunal Act, 1987, the MMTC Limited, a company falling within the meaning of the Companies Act, 1956 having its office at 8, India Exchange Place, Fourth and Fifth Floor, Kolkata 700 071 (in short, "the petitioner -company") has challenged the order dated September 30, 2008 passed by the Assistant Commissioner of Commercial Taxes, Corporate Division (respondent No. 2) in the matter of assessment under section 46 of the West Bengal Value Added Tax Act, 2003 (in short, "the VAT Act") pertaining to the period four quarters ending on March 31, 2006. The petitioner has also challenged the order dated November 9, 2009 passed by the Senior Joint Commissioner of Sales Tax, Corporate Division (respondent No. 1) under section 84 of the VAT Act in Appeal Case No. 191/CD/08 -09 for the period in question. The main question raised in this petition as to whether dun peas and yellow peas (in short, "disputed goods") sold by the petitioner merits exemption from payment of tax as a tax -free item. Disallowance of the claim preferred by the petitioner -company under section 6(2) of the Central Sales Tax Act, 1956 (in short, "the CST Act") and imposition of penalty under section 46(2) of the VAT Act have also been challenged in this petition.
(2.) DURING the course of assessment for the period in question, respondent No. 2 disallowed the petitioner -company's claim preferred under section 16(1)(a) of the VAT Act on the following grounds: Dun and yellow peas, as explained by the dealer's representative, are dry peas imported from abroad as to the conundrum whether it is a pulse. It may be said that serial No. 14(via) of the CST Act, 1956 safely rules out the possibility of such goods being pulses. The Central Excise Tariff Code 85 of such item is 0708 which broadly describes the goods as leguminous vegetable shelled or unshelled, fresh or chilled. The aforesaid goods are basically peas dried in the sun, used in split form in cuisines and are of green and yellow cotyledon type. To qualify for exemption under serial No. 18 of Schedule A, the vegetables obtainable from the garden must be fresh. What happens here is that peas imported from abroad loses its freshness and with the process of being dried, they get the character of being processed and preserve vegetables akin to what is specified against serial No. 58B of Schedule C (part I) of the Act. So extent of claim disallowed is exigible to tax under section 16(2)(b) of the Act." Claim under section 6(2) of the CST Act was disallowed to the extent of Rs. 6,58,25,100 and was treated as intra -State sale because of the difference in quantity of goods purchased and sold in transit. Moreover, a penalty of Rs. 6,000 was also imposed by respondent No. 2 for delayed submission of returns. Being aggrieved and dissatisfied with the orders dated September 30, 2008 passed by respondent No. 1, the petitioner -company filed an appeal petition registered as 191/CD/08 -09 before the appellate authority, respondent No. 1. Respondent No. 1 while passing the order dated November 9, 2009 modified the assessment order only to a limited extent. He, however, confirmed the findings of respondent No. 2 regarding taxability of disputed goods. In the said appeal order, there was, however, no discussion with regard to disallowance of claim by an amount of Rs. 6,58,25,100 preferred by the petitioner -company under section 6(2) of the CST Act and treating the same as intra -State sale.
(3.) MR . A.K. Dugar, learned advocate appearing on behalf of the petitioner -company, challenges the observation made by the respondents regarding taxability of the disputed goods. It is submitted by the learned advocate that the petitioner -company imported the disputed goods (in whole form) from abroad and there was no additional process involved for preservation and neither these were splitted through different process.;