BLUE DART AVIATION LTD Vs. ACCT/HOWRAH RANGE

JUDGEMENT

(1.) THE petitioner here challenges the detention of 1771 pieces of mobile phones packed in 13 carton boxes by the Assistant Commissioner, Commercial Taxes, Howrah Range, under Section 80 of the West Bengal Value Added Tax Act, 2003 and the order dated May 18, 2005 by the said officer imposing penalty for alleged violation of Section 80 of the said Act.

(2.) THE contention of the petitioner is that the petitioner carries on business as transporter as well as courier. In the course of business, the petitioner -transporter was engaged by M/s. Ingram Micro India (P) Ltd., Navi Mumbai, for transporting 1771 pieces of mobile phones to their another business place at Bhubaneswar. The petitioner prepared air way bill on the basis of the invoices which were handed over by the said consignor at Mumbai. The said air way bill contains the invoice number of the consignor and the number of packages containing 1771 pieces of mobile phones. The State of West Bengal was used as a corridor for the purpose of the said transportation by the petitioner's own aircraft. The above transported goods thus reached Kolkata Air Port (N. S. C. Bose) on May 10, 2005. The petitioner then submitted a declaration as required under Section 80 of the said Act and the Commercial Tax Officer of the Air Port Check -post after being satisfied about the documents, duly endorsed the declaration along with invoices and air way bill and the petitioner brought the goods along with the documents to Howrah Station for transportation of the same to Bhubaneswar. As the declaration that was submitted there mentioned the goods as computer software, but the actual goods that were transported were mobile phones, respondent No. 1, Assistant Commissioner, Commercial Taxes, Howrah Range, could not be persuaded to hold that there was a mistake in describing the goods at the entry point at Dum Air Port by the petitioner and for such technical mistake, the petitioner should not be made to suffer. The respondent No. 1 did not pay any heed to the said argument, detained the goods and issued show cause notice as to why penalty under Section 80 of the VAT Act shall not be imposed. Ultimately on May 18, 2005, he imposed penalty of Rs. 27,93,792 as per the valuation declared by the petitioner in the document produced though not relied upon by the respondent No. 1. The contention of the petitioner is that the order was passed mechanically without application of mind and the technical mistake that took place in describing the goods at the time of making the declaration in the first check -post should have been allowed to be rectified since all other documents were in order. Hence, this prayer.

(3.) THE petitioner used affidavit -in -reply where all the facts mentioned in the application were reiterated. It was the respondent's legal duty to read the entire documents as a whole and if the respondent would have done it, he would have appreciated that the fault was as a result of clerical mistake in describing the goods. There can be no question of taking unfair means since rate of tax on both the goods mobile phone and computer is same. So, it is contended that the petitioner is entitled to get the relief.