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2011 Supreme(Gau) 686
GAUHATI HIGH COURT
I.A.Ansari,U.B.Saha, JJ.
Kanailal Textiles -Appellant
Versus
State of Tripura & Ors. -Resopndent
Civil Rev. Petition No. 40 of 2007(D/O) Re No. CRP 82 of 2009
Decided On : 12-08-2011
For the Petitioner:Mr.Somik Deb, For the Respondents: Mr.N.C.Pal, Sr.GA.
Headnote:
Tripura Value Added Tax Act, 2009 - Section 72 - Payment of taxes - Enquiry - Consignments reached check post Tripura Superintendent of Taxes respondent namely Superintendent of Taxes in charge of check post seized said consignment goods on ground that said consignments were undeclared - Respondent namely Superintendent of Taxes check post assessed value of goods at handed over seizure list to driver of vehicle - Following reasons were assigned for seizure of goods by respondent – Held, In present case as petitioner has denied fact that he had opted for composition and there no or evidence to show that petitioner had ever opted for compounding of offence question determination of composition money by Commissioner of Taxes did not arise at all - Even after determination composition money till amount is paid by dealer compounding offence cannot come to an end and Commissioner of Taxes in such circumstances issue direction to release goods on payment composition money - When composition money was not paid by petitioner it was incumbent on part of Commissioner of Taxes to decide issues raised in revision application on merit - Upon giving opportunity to person proceeded against and upon due hearing penalty can and needs to be imposed and not otherwise - Having given opportunity of hearing authority concerned shall take into account all relevant circumstances and eschew from consideration every irrelevant circumstance determine as to whether person proceeded against needs to be saddled with liability of payment penalty for possession or movement goods in violation provision Clause subsection Section of TVAT Act or for submission of false or forged documemts - Authority concerned must take decision in matter of imposition of penalty objectively upon considering all relevant factors – Appeal disposed
With the help of this revision, made under Section 72 of the Tripura Value Added Tax Act, 2009, the petitioner has challenged the order, dated 10.12.2006, passed by the Superintendent of Taxes, Churaibari Check Post, Tripura, seizing certain consignment of goods on the grounds that the said consignment was undeclared.
2. The petitioner has, with the help of this revision, also challenged the order, dated 17.12.2007, passed by the Commissioner of Taxes, Tripura, holding that the seized goods were taxable @ 12.5% by virtue of Entry 135 of Schedule H(B) of Tripura Value Added Tax Act, 2004, (in short, 'the TVAT Act') and since the petitioner had opted for composition, the petitioner shall pay a sum of Rs. 16,125/- as the amount of compensation and directed the Superintendent of Taxes to release the said goods on payment of the composition money.
3. The petitioner's case is, in brief, thus: The petitioner purchased 600 metres offish net fabric at Rs. 16,125/- from Kolkata and booked the said fish net fabric in five consignment to Tripura. In the documents, the consignment of goods was classified as fish net fabric. When the said consignments reached Churaibari check post, Tripura, Suprerintendent of Taxes, respondent No. 3 herein, namely, Superintendent of Taxes, in charge of Churaibari check post, seized the said consignment of goods on the ground that the said consignments were undeclared. The respondent No. 3, namely Superintendent of Taxes, Churaibari check post, assessed the value of the goods at Rs. 43,000/- and, thereupon, handed over the seizure list to the driver of the vehicle. The following reasons were assigned for seizure of the goods by the respondent No.3:
"Searched the goods in the vehicle and 5 (five) pkgs of mosquito net (plastic made) seized for causes of undeclaration. The transporter in C. N. wrong information submitted, only Fishnet Fabric. Hence seized the goods seems to have undeclaration & wrong information."
4. The petitioner, thereafter, approached the Commissioner of Taxes with a prayer for releasing of the seized goods. The Commissioner of Taxes, the respondent No.2 herein, however, vide order, dated 17.02.2007, held that the seized goods were mosquito net (plastic made) and, therefore, taxable @ 12.5% under Entry 135 of Schedule II(B) of the TVAT Act. The Commissioner of Taxes also recorded, in his order, dated 17.02.2007, that the petitioner had opted for composition and ordered the petitioner to pay a sum of Rs. 16,125/- as composition money and directed the Superintendent of Taxes, the respondent No.3 herein, to release the seized goods on payment of the said composition money.
5. Being aggrieved, the present revision application has been filed challenging the orders, dated 10.12.2006 and 17.12.2007, passed by the Superintendent of Taxes, Churaibari Check Post, Tripura, and the Commissioner of Taxes, Tripura respectively.
6. We have heard Mr. Somik Deb, learned counsel, for the petitioner and Mr. N C. Pal, learned Government Advocate, for the respondents.
7. While considering the present writ petition, it needs to be noted that the TVAT Act came into force with the effect from 27.04.2005. Schedule III attached to the TVAT Act contains a list of exempted goods. Entry 15 of Schedule III of TVAT Act, prior to its amendments, reads as under:
"15. Fishnet, Fishnet fabric, fish seeds/ prawn/shrimp seeds"
8. By the Tripura Value Added Tax (Amendment) Ordinance, 2007, the aforesaid Entry 15 was replaced by the following:
"15. Fishnet, Fishnet fabric, fish seeds/ prawn/shrimp seeds, mosquito net."
9. Thus, with the amendment of Entry 15 of the Tripura Value Added Tax (Amendment) Ordinance, 2007 Mosquito net was also exempted from the payment of tax under the TVAT Act.
10. Mr. Somik Deb, learned counsel appearing for the petitioner, assailing the orders, dated 10.12.2006 and 17.12.2007, passed by the Superintendent of Taxes, Churaibari check post, Tripura, and the Commissioner of Taxes, Tripura, respec
