Dipak Chakraborti, Technical Member - (1.) SRI Ajay Kumar Poddar, proprietor, carrying on business under the name and style of M/s. Chetna Carrying Corporation having registered office at 32, Ezra Street, Suite No. 863, 8th Floor, Kolkata 700 001 in this petition filed under Section 8 of the West Bengal Taxation Tribunal Act, 1987, has challenged the order dated February 1, 2008 of the Sales Tax Officer, Sonakania check -post (in short, "the STO/SKCP") imposing a penalty of Rs. 6,58,459 under Section 80(6) of the West Bengal Value Added Tax Act, 2003 (in short, "the VAT Act") in TD Case No. 129/SCP/TD/07 -08 dated November 24, 2007.
(2.) THE petitioner is a transporter and in course of his business, the petitioner received an order from Tata Motors Limited of Pune for transporting ten Tata Ace chassis to RSO, Tata Motors Limited, Guwahati. Those chassis were being transported by the petitioner on a trailer bearing registration No. NL -01D -4568 by using West Bengal as a corridor. Transit declaration vide TD No. 1232/SCP for transporting goods through West Bengal was obtained by the petitioner on August 17, 2007. The petitioner was allowed seven days time from the date of issue of the transit declaration for taking the goods out of West Bengal. The exit check -post as indicated by the STO/ SKCP was Barovisa check -post. The trailer along with the chassis reported at Barovisa check -post on August 21, 2007, as it appears from the endorsement made by the patrolman of Barovisa check -post on the transit declaration in question. Thereafter, after crossing the border of West Bengal, the petitioner delivered the goods to Tata Motors Limited at Guwahati. On November 28, 2007, the STO/SKCP directed the petitioner to explain on December 21, 2007 as to why penalty could not be imposed for violation of the provision of Section 80 of the VAT Act. By a letter dated February 1, 2008, the petitioner submitted his explanation and was duly represented by an advocate. The explanation as submitted by the representative of the petitioner was not accepted mainly on the ground that the transit declaration in question was not endorsed by any officer of Barovisa check -post and there was no mention of any exit number and exit date. The value of the consignment was estimated at Rs. 26,33,836.80. Penalty at 25 per cent on the value of the goods was imposed. The petitioner challenged this order before the Assistant Commissioner of Commercial Taxes, Kharagpur Range (in short, "the ACCT/KP") who by his order dated April 28, 2008 confirmed the order of the STO/SKCP mainly on the ground that there was no endorsement on the body of the transit declaration. While confirming the order of the ACCT/KP, the Deputy Commissioner of Commercial Taxes, Kharagpur Range (in short, "the DCCT/KP") also came to the conclusion that there was no endorsement on the body of the transit declaration. This order was passed on September 3, 2008. There is no allegation that the goods were not delivered to Tata Motors Limited at Guwahati.
(3.) SRI Goutam Chakraborty, learned advocate appearing along with Sri Sisir Kumar Dey, advocate, on behalf of the petitioner, contended that the goods had actually been delivered to Tata Motors Limited, Guwahati and he brought to our notice the endorsement made on the transit declaration No. 1232/SCP dated August 17, 2007. It appears that there is a stamp of the Barovisa check -post indicating a number 173 dated August 21, 2007. It was, therefore, contended by the learned advocate appearing on behalf of the petitioner that this document was actually produced before the authorities of Barovisa check -post. The driver of the vehicle was under the impression that all formalities had been completed and he crossed the check -post and entered Assam. It was, therefore, argued by the learned advocate that in such circumstances, it was improper on the part of the concerned authorities to impose such a penalty. Such a huge consignment (ten chassis on a trailer) could not have escaped the attention of the authorities of Barovisa check -post. Nobody demanded production of any other documents and nobody insisted that transit declaration produced before the patrolman of the check -post was supposed to be endorsed by some other authorities. Therefore, there was no violation of the provision of Section 80 of the VAT Act and hence it was the prayer of the petitioner that all the orders dated February 1, 2008, April 28, 2008 and September 3, 2008 should be set aside or cancelled.;