INDIAN PLYWOOD INDUSTRIES Vs. DEPUTY COMMISSIONER COMMERCIAL TAXES

JUDGEMENT

(1.) BEING aggrieved by the decision dated October 7, 2002 of the West Bengal Commercial Taxes Appellate and Revisional Board upholding the Deputy Commissioner's (B.C.) suo motu revisional order dated September 7, 1999 for the assessment of four quarters ending March 31, 1994 rejecting deduction of an amount of Rs. 9,33,750 from the gross turnover of sales in view of the absence of declaration form XXXIII in terms of Rule 27C(2) of the Bengal Sales Tax Rules, 1941, read with Section 5(3) of the Central Sales Tax Act, 1956, the petitioner has come up here by filing this instant application under Section 8 of the West Bengal Taxation Tribunal Act, 1987, praying for a declaration that the said Rule 27C(2) of the Rules 1941 is ultra vires the rule -making power of the State and for further declaration that the said rule is violative of Articles 14, 19(1)(g) and 301 of the Constitution of India.

(2.) THE case of the petitioner -dealer is that the petitioner No. 1 is a partnership firm and petitioner No. 2 is one of its partners and the petitioner -firm is registered under the Act of 1941 and thereafter became registered dealer under the West Bengal Sales Tax Act, 1994. The petitioner is engaged in the business of purchase of tea chest panel from West Bengal and sells those either in West Bengal or outside West Bengal. It also sells to other dealers who purchase the same for the purpose of export. The petitioner duly submitted return under the Bengal Finance (Sales Tax) Act, 1941 for the four quarters ending March 31, 1994. The respondent No. 2, C.T.O. Ultadanga Charge passed an assessment order dated June 12, 1996 for assessment for the said quarter ending March 31, 1994. He found some amount due from the petitioner and made a demand of the said tax and interest which the petitioner duly paid. But respondent No. 1, D.C., Commercial Taxes, Calcutta North Circle, issued a notice in form IX in September, 1999 proposing to reopen the assessment to enhance the amount of assessment for the said period by disallowing a sum of Rs. 9,33,750 from the claim for exemption of an amount of Rs. 13,20,750 under Section 5(3) of the Central Sales Tax Act, 1956. The petitioner appeared and claimed that the petitioner received from M/s. T.P. Enterprises two orders being No. TP/SP 1/24/93 -94 dated May 6, 1993 and No. TP/1P1/103/93 -94 dated July 9, 1993 for supply of 27,000 and 18,000 tea chest panels respectively. The purchaser made the said purchase to comply with a foreign order received already from Sri Lanka party and the petitioner was asked not to charge sales tax as the transactions were last sales preceding sales in the course of export within the meaning of Section 5(3) of the Central Sales Tax Act, 1956. In respect of the first order, the petitioner supplied goods in five instalments and in respect of the second order in four instalments. The first order comprising five bills amounted to a total of Rs. 7,71,750 and the second was for Rs. 5,49,000. Treating the aforesaid two orders as two transactions, the purchasing dealer executed two declarations in form XXXIII covering five bills against the first order and covering four bills against the second order. As each declaration covered more transactions of sale than one, the D.C. opined that in terms of Rule 27C(2) of the Rules, 1941, nine declarations should have been obtained in support of the nine bills. The D.C. as such allowed first declaration in form XXXIII to cover only the first bill of Rs. 2,52,000 and second declaration to cover the first bill for Rs. 1,35,000. Thus balance amount of Rs. 9,33,750 was directed to be taken into account in levying turnover tax, additional sales tax and interests. The petitioner went in revision before the West Bengal Commercial Taxes Appellate and Revisional Board. But the Board by order dated January 7, 2002 affirmed the D.C.'s order. Hence, the petitioner has come up with the prayer as stated above.

(3.) THE contention of the respondents in the affidavit -in -opposition is that no single declaration in form XXXIII shall cover particulars of more than one sale bill or cash memo in respect of goods sold in West Bengal for export of such goods out of the territory of India and a declaration furnished in contravention of this provision shall not entitle the selling dealer who accepts such declaration to make any claim for deduction of such sale from his gross turnover under Sub -clause (v) of Clause (a) of Sub -section (2) of Section 5 of the Act of 1941 read with Sub -section (3) of Section 5 of the C.S.T. Act, 1956. Rule 10(a) and Rule 10(b) of the Central Sales Tax (Registration and Turnover) Rules, 1957 deal with the provisions for issuance of form H covering sale in the course of export out of the territory of India. It will be seen that in the C.S.T. Rules, 1957, no such condition has been prescribed for covering export under Section 5(3) when the purchase is made within the State of West Bengal. Rule 11 of the C.S.T. (West Bengal) Rules, 1958 makes an omnibus vehicle for the State to frame rules and prescribe forms to cover up transactions under the C.S.T. Act, which have not been covered under the C.S.T. (Registration and Turnover) Rules, 1957 and those rules framed by the State Government must not be inconsistent with the C.S.T. Act. So, the State has power and competence to frame rules which are not inconsistent with the C.S.T. Rules.