Calcutta High Court (Appellete Side)
Alom Extrusion Ltd vs Sales Tax Officer on 4 January, 2012
Author: K.J. Sengupta
Bench: K.J. Sengupta
2012 kc W.P.T.T. 27 of 2011 Alom Extrusion Ltd.
-versus-
Sales Tax Officer, Kharagpur Range and Ors.
Ms. Sumit Kumar Chakraborty, Mr. Debanuj Basu Thakur, Mr. Piyal Gupta......................For the petitioner.
Mr. Abhratosh Majumdar, Mr. Soumitra Mukherjee..............For the State.
This application is directed against the judgment and order dated 31st March, 2011, by which the learned Tribunal has been pleased to uphold the order of imposition of penalty; however, quantum of penalty has been reduced from Rs. 4,58,080/- to Rs. 3,00,000/-.
The learned Tribunal has recorded the fact of this case succinctly and it cannot be disputed. The only point urged by Mr. Chakraborty is that the seizure is illegal and invalid as the checkpost which was earlier there, was abolished and, as such, the original way bills could not be endorsed. Accordingly, at the time of seizure of the vehicle with the goods, these documents could not be produced. According to him, when there is no scope for endorsement of the way bills at the checkpost, presentation of those documents is absolutely unnecessary and on that ground the goods should not have been detained and later on ought not to have been seized.
Mr. Chakraborty, relying on a decision rendered in the case of Ferring Pharmaceuticals Private Ltd. & anr. -vs- Assistant Commercial Tax Oficer & Ors, reported in Sales Tax Advices (Vol. 47) page 236, further contended that before seizure of the goods, 48 hours time should have been given to the petitioner to produce the relevant documents. But, in this case, 48 hours time was not given, as on the date of seizure, this time limit did not expire. When the seizure itself is bad, consequently the order imposing penalty is also bad.
Mr. Abhratosh Majumdar, appearing for the State has drawn our attention to the application filed by the petitioner before the learned Tribunal, wherefrom it appears that the petitioner before us, of his own, preponed the time limit of 48 hours and this time limit was to expire on 14th 2 December, 2010. From the statements and averments of the said application it appears that because of urgent need of the materials, the petitioner had no option but to release the goods, upon payment of penalty.
Admittedly, on the date of release of the goods, i.e. 13th December, 2010, the way bills were not produced. It is also an admitted position that when the vehicle was detained, the aforesaid document was not being carried by the driver of the vehicle. Later on, the way bills were produced, but after expiry of the stipulated time and by that time, there has been a contravention of provision of law.
The learned Tribunal, after considering all the aspects of the matter, rejected the contention of the petitioner and we think that this has been done, rightly. We are of the view that the time limit of 48 hours, mentioned in section 76 of the VAT Rules, is really an optional one for the transporter and/or the driver. From the language used in that section, it seems to us that the transporter and/or the deriver concerned, who is carrying the goods, can waive this right of 48 hours; but if such option is not exercised by preponing the time limit, then the department cannot unilaterally prepone it and must wait for 48 hours at least.
The decision cited by Mr. Chakraborty is factually distinguishable and it is not applicable in the instant case. In the case under report, department of their own did not give 48 hours time. But in this case, it appears from the statements and averments of the application made before the learned Tribunal that the petitioner himself had asked for preponing the time limit and thus, waived length of time. We think when such time is waived the department is under no obligation to wait for 48 hours mandatorily, as in the case of others. Therefore, non-compliance of time limit of 48 hours, in this case, is not fatal. Hence, the aforesaid decision is of no assistance.
Considering the facts and circumstances of this case, it appears to us that the way bill was available and the same was produced later. We think that because of this technical contravention of law, the amount of penalty needs to be reviewed.
We, therefore, reduce the amount of penalty to Rs. 1,50,000/- (One Lac fifty thousand) in stead of Rs. 3,00,000/-. In the event, any amount of penalty has been paid, in excess to Rs. 1,50,000/-, the same shall be refunded to the petitioner within eight weeks from the date of receipt of copy of this order. If the refund, if any, is not made within the time stipulated above, then such amount shall carry interest @ 9% per annum.
3With the aforesaid observations, this application stand disposed of. There will be no order as to costs.
(K.J. SENGUPTA,J.) (JOYMALYA BAGCHI,J.)