Sabyasachi Roy (Technical Member) - (1.) BY filing this application under section 8 of the West Bengal Taxation Tribunal Act, 1987, Epitone Petrochemicals Pvt. Ltd. (petitioner No. 1) and Radhu Shil (petitioner No. 2), working for gain with petitioner No. 1, have challenged the impugned orders passed by the Deputy Commissioner of Sales Tax, Phansidewa More check -post (PMCP) (respondent No. 2) and Sales Tax Officer, PMCP (respondent No. 1), respectively, in the matter of seizure of goods and subsequent imposition of penalty thereon. Petitioner No. 1 carries on business of manufacturing as well as reselling various goods. The registered office of petitioner No. 1 is located at 7, Prafulla Sirkar Street, Kolkata 700 013 in West Bengal and its factory situated at Ranipool, Sikkim. In course of their business, the petitioners had placed an order to M/s. Indorama Ventures, Indonesia, for supply of about 198 MTs of pet resin for the purpose of manufacturing their product at their factory at Ranipool, Sikkim. The foreign seller despatched the entire consignment in 180 bags through ship to the Kolkata Port and raised single invoice bearing No. E -1111 -25 -30 dated November 24, 2011 in the name of petitioner No. 1 showing its Kolkata address.
(2.) ON instruction of petitioner No. 1, the consignment of pet resin loaded in 180 bags was cleared from the Kolkata Port by the clearing agent and subsequently loaded in various trucks from time to time for transportation of the goods to the factory situated at Sikkim. As averred in the application, the driver of each vehicle was provided with the copies of the invoice, consignment note, duly filled in transit declaration obtained from the website of the Directorate of the Commercial Taxes, West Bengal, and way -bill in form 25 as per rule 69(1) of the Sikkim Value Added Tax Rules, 2005. When one of such vehicles bearing, No. WB -51A -1975 carrying a consignment of 14 bags of pet resin reached PMCP on January 1, 2012, the same was intercepted by the Assistant Sales Tax Officer, PMGP. On demand, the driver of the said vehicle produced related documents, viz., invoice, road challan, transit declaration, etc. However, not being satisfied with the produced documents, the Assistant Sales Tax Officer referred the matter to respondent No. 2 for taking further action in this regard on the plea that no way -bill in form 50 and 50A could be produced by the driver of the said vehicle at the time of interception, it has been alleged that the submission of the driver that as the goods were loaded in the vehicle at the Kolkata Port and were on its way to Sikkim, using West Bengal as a corridor, there was no requirement of form 50 or 50A, was not taken into consideration. Similar submission made before respondent No. 2 also was of no avail and the goods loaded in the vehicle were subsequently seized on January 2, 2012 by respondent No. 2. Immediately after seizure of the goods, penalty proceedings against the driver of the said vehicle was initiated by respondent No. 2. Hearing of the penalty proceedings was, however, not taken up by respondent No. 2 but was heard and disposed of by respondent No. 1 by way of imposition of penalty of Rs. 4,61,588 upon petitioner No. 1 on a determined goods value of Rs. 15,38,628.
(3.) SRI B. Bhattacharyya, learned advocate appearing on behalf of the petitioners, submitted that in the instant case, the petitioners had produced all related documents as well as the actual invoice, packing list, beneficiary certificate, address advising and the certificate of insurance of goods, etc., and in all of which, there was clear mention of the fact that the goods were meant for delivery at the factory of petitioner No. 1 at Ranipool in Sikkim. He submitted that the respondents had failed to appreciate the fact that in the instant case, the goods were imported from Indonesia and the transportation of the imported goods being made directly from the Kolkata Port to Ranipool in Sikkim using West Bengal as a corridor, the provision of section 80 of the VAT Act, 2003 would be applicable in the instant case. By no stretch of imagination, the provision of section 73 of the VAT Act, 2003 could be made applicable in the present case and way -bill in form 50 or 50A could be demanded for such transportation. Sri Bhattacharyya submitted that respondents should have appreciated that out of the total import of 180 bags of pet resin, 166 bags of pet resin had already been despatched to Sikkim on production of 12 transit declarations after due endorsement of documents at Melli check -post and the instant consignment of 14 bags of pet resin was the last part of the entire imported consignment.;