CERA TECH INDIA Vs. ASSTT. COMMERCIAL TAXES OFFICER

JUDGEMENT

(1.) THIS Sales Tax Revision petition has been filed against the order dated 29-6-2012, passed by Rajasthan Tax Board, Ajmer (hereinafter 'the Board') allowing a second appeal under Section 83 of the Rajasthan Value Added Tax Act, 2003 (herein after to be referred as 'RVAT') and setting aside the order of the appellate authority. The Board held that a belated submission of form VAT 47 on notice being issued for non compliance of provisions of Section 76 (2) (b) of the RVAT could not allow avoidance of the penalty under section 76 (6) of the RVAT.

(2.) THE facts of the case are that the petitioner company (hereinafter 'the assessee') engages in the business of manufacturing and trading in foundary products and refractories. In the course of its business the assessee purchased crucible goods from one M/s. Vesuvius India Limited, Mehsana (Gujarat) vide invoice No.2090 dated 15-5-2008 for a sum of Rs.6,56,463.00 against C form, wherein the said seller had charged CST at the rate of 3%. In the course of transportation of goods purchased to the works of the assessee the vehicle carrying goods was checked by the ACTO, Flying Squad, HO Bhiwadi, Alwar on 17-5-2008. In the course of checking all papers requisite under Section 76 (6) of the RVAT Act except Form VAT 47 were found with the goods in transit. In these circumstances treating it to be a case of violation of Section 76(6) of the RVAT Act, the ACTO detained the vehicle carrying the goods and issued notice on 17-5-2008 to the petitioner assessee to show cause as to why penalty under Section 76 (6) of the RVAT Act not be imposed upon it for contravention of Section 76(2) (b) of the RVAT Act. Pursuant to notice, the petitioner assessee on 17-5-2008 itself submitted form VAT 47 bearing No.2542751 along with its reply. It was submitted in the reply that the said form VAT 47 was in fact lodged in the dash-board of the vehicle in which the goods were being transported, but owing to illiteracy of the driver the said form VAT 47, even though lodged in the dash-board of the vehicle, could not be presented to the ACTO. It was submitted that even otherwise bonafides of transaction were not in issue and were established by other accompanying documents. The ACTO however overlooked the reply of the petitioner assessee to the show cause notice dated 17-5-2008, the Form VAT 47 submitted along with and without making any enquiry held it to be a case of contravention of 76(2)(b) of the RVAT Act and visited the assessee with the penalty of Rs.1,96,939.00 under Section 76(6) of the RVAT Act vide order dated 24-5-2008.

(3.) MR . Alkesh Sharma, learned counsel appearing on behalf of the petitioner assessee submits that the reasoning of the Rajasthan Tax Board in the impugned order for setting aside the order dated 9-3-2010 is absolutely misdirected. He submits that the Board has proceeded on the alleged improbabilities of defence of assessee in reply to the show cause notice that the form VAT 47 was lodged in the dash-board of the vehicle in which goods were being transported. Counsel submits that there was no material/ evidence before the Board to come to the conclusion that the defence set up by the assessee with regard to form VAT 47 being lodged in the dash-board of the vehicle was incorrect or not bonafide. He submits that even otherwise the Hon'ble Supreme Court of India in the case of D.P. Metals (supra) has held that if by mistake some of the documents requisite under Section 76(2)(b) of RVAT Act are not readily available at the time of checking, on the said document (such as Form VAT 47) being submitted along with the reply, it would suffice for absolving the assessee from any allegation of statutory contravention or liability for penalty therefor. Counsel submits that the judgment of D.P.Metals (supra) has been followed by the Hon'ble Supreme Court of India in innumerable cases, wherein the High Court has held that alleged deficiency constituted by a contravention of Section 76 (2) (b) of the RVAT Act in the absence of Form VAT 47 with the goods in transit can be set right with the supply of the Form VAT 47 along with the reply. Counsel submits that the alleged deficiency at the time of checking of vehicle was in the present case removed on submitting the reply to the show cause notice along with a copy of Form VAT 47 duly filled. Counsel submits that the department and the Board could not have ignored the reply of the petitioner assessee along with Form VAT 47 as well as the judgment of the D.P. Metals (supra).