ULTRA TECH CEMENT LIMITED AND ANR. Vs. ASSISTANT COMMISSIONER OF COMMERCIAL TAXES, KHARAGPUR RANGE AND ORS.

JUDGEMENT

(1.) IN this application under Section 8 of the West Bengal Taxation Tribunal Act, 1987, the petitioner, Ultratech Cement Limited, is a company incorporated under the Companies Act, 1956 and is engaged in manufacturing and reselling of cement under the brand name Ultra Cement. On stock transfer the petitioner despatched a consignment of 2312.35 MT cement by rail from Hirni Raipur, Chhattisgarh to Kharagpur, West Bengal through RR No. FP157761 -800 dated April 2, 2006. The consignment reached the destination at Kalaikunda on April 4, 2006 at 6 a.m. but the transfer memo and the RR allegedly could not reach the petitioner before the arrival of the rake at Kalaikunda and for that the way -bill could not be produced to get endorsed by the officer of Kharagpur Range before unloading and shifting of the goods completed on the explanation of saving heavy penalty. After taking delivery of the consignment the petitioner produced the way -bill with original stock transfer memo before respondent No. 1, i.e., Assistant Commissioner of Sales Tax, Kharagpur range, who refused to endorse the way -bill as the delivery of the consignment was already effected and accordingly issued a notice of objection with imposition of penalty. In response to the said notice the petitioner appeared before respondent No. 1 produced all documents and explained the circumstances under which the delivery of the consignment was taken before the endorsement but allegedly he did not consider the same and imposed penalty of Rs. 11,79,125. Being aggrieved by and dissatisfied with the said order the petitioner preferred a revision before respondent No. 2, i.e., Deputy Commissioner of Sales Tax, Kharagpur range who by his order dated March 26, 2007 has modified the said order of penalty and has reduced the amount of penalty of Rs. 1 lac only and hence this application is filed praying for setting aside of the order as well as the revisional order of penalty as being bad and illegal.

(2.) MR . Gautam Ghosh, learned Advocate for the petitioner, submits that the petitioner was bound by compelling circumstances to take delivery of the consignment before endorsement of the way -bill by respondent No. 1 as he did not receive the necessary documents like original stock -transfer memo and the RR (railway receipt) before the rake reaching the railway siding of Kalaikunda and to save heavy penalty for delayed delivery. However, neither respondent No. 1 nor the revisional authority, i.e., respondent No. 2, considered those facts and hence the penalty proceeding and the revisional order suffered from material illegality and irregularity and those are, therefore, liable to be set aside. In support of the above contention the learned Advocate has cited and relied on the decision dated July 17, 2007 passed by this Tribunal in case No. RN -149 of 2007 (Century Cement v. Assistant Commissioner of Commercial Taxes, Kharagpur Range, [2009] 26 VST 463).

(3.) IN the present case there is no denial and/or dispute as to the material facts that the consignment in question was a stock transfer and delivery was effected without endorsement of the way -bill by respondent No. 1. There is also no dispute that as per the provisions of the VAT Act and Rules the consignee was required to get the relevant way -bill endorsed by the concerned sales tax authority before taking delivery of the consignment. There is also no denial of the fact that the way -bill along with the original stock transfer memo and RR was produced before respondent No. 1 only after taking delivery of the consignment. There is also no case of the respondents that the documents subsequently produced were false and/or fake documents. The glaring fact on record is that the petitioner not only took delivery of the consignment but also disposed of the goods before endorsement of the documents by respondent No. 1 and, therefore, there was no scope before respondent No. 1 to physically verify the consignment as to the quantity, description, weight and value of the consigned goods with those of the stock transfer memo. Mere production of the required documents after taking delivery of the consigned goods is not sufficient for mechanical acceptance by respondent No. 1 and compliance with the provisions of law by the petitioner.