Calcutta High Court (Appellete Side)
Rumki Biswas vs Senior Joint Commissioner on 1 December, 2022
-Item No.4.
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
HEARD ON: 01.12.2022
DELIVERED ON:01.12.2022
CORAM:
THE HON'BLE MR. JUSTICE T. S. SIVAGNANAM
AND
THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA
M.A.T No.1777 of 2022
with
I.A. No.CAN 1 of 2022
with
I.A. No.CAN 2 of 2022
Rumki Biswas.
Vs.
Senior Joint Commissioner, Commercial Taxes,
Budge Budge Charge & anr.
Appearance:-
Mr. Vinay Kr. Shraff,
Ms. Priya Sarah Paul,
Ms. Priyanka Sharma ... for the appellant.
Mr. T. M. Siddique,
Mr. Debasish Ghosh,
Mr. D. Ghosh,
Mr. Nilotpal Chatterjee,
Mr. V. Kothari .... for the State.
JUDGMENT
(Judgment of the Court was delivered by T.S. SIVAGNANAM, J.)
Re: I.A. No. CAN 1 of 2022
1. This is an application to condone the delay of 68 days in
filing the instant appeal.
2. We have heard Mr. Vinay Kr. Shraff, learned counsel
appearing for the appellant duly assisted by Ms. Priya Sarah
Paul, learned Advocate and Mr. Debasish Ghosh, learned counsel
appearing for the respondents/State.
3. We are satisfied with the reasons assigned in the affidavit
filed in support of the application. Accordingly, the delay in
filing the instant appeal is condoned.
4. The application for condonation of delay being I.A. No.CAN
1 of 2022 is allowed. There shall be no order as to costs.
Re: MAT 1777 of 2022
5. This intra Court appeal by the writ petitioner is directed
against the order dated 4th August, 2022 passed in W.P.A.
No.17507 of 2022. By the said order, the learned Single Bench
declined to grant any interim order in favour of the appellant
and aggrieved by same, the appeallant is before this Court.
6. The challenge in the writ petition is to the order passed
by the Senior Joint Commissioner of Commercial Taxes, Budge
Budge Charge dated 5th June, 2022 affirming the order passed by
the original authority dated 30th March, 2022 imposing 200%
penalty on the ground that the appellant had violated the
provisions of Rule 138 of WBGST/CGST Rules, 2017. Undoubtedly,
the order passed by the appellate authority is an lengthy order.
However, in our consider view, such cumbersome exercise need not
have been done by the appellate authority as the short issue,
which falls for consideration is whether there was any intention
on the part of the appellant to evade payment of duty. If the
appellant is able to give a satisfactory explanation that there
was no intention to evade payment of duty, nothing more is
required to be done and the proceedings could be dropped.
7. The case of the appellant is that they had generated part A
of the e-way bill on 22nd March, 2022 and part - B was generated
on 24th March, 2022. However, since the goods could not be
loaded into the vehicle, the appellant appears to have cancelled
part A e-way bill dated 22nd March, 2022 and generated new part A
e-way bill on 24th March, 2022. When the vehicle was
intercepted, the driver was carrying part B of e-way bill in
respect of which part A has been cancelled.
8. The question would be whether this would tantamount to
intention to evade payment of duty or with a view to
clandestinely move certain goods. In our prima facie view, it
does not appear so and could be considered to be a bona fide
error.
9. The learned Advocate appearing for the appellant would
submit that the conduct of the appellant in generating a fresh
part B within two hours of detention would clearly show that
there was no intention to evade payment of duty.
10. As pointed out earlier, the order passed by the appellate
authority is a lengthy order and certain decisions of the High
Courts have also been referred to. Partly, the appellant has
contributed to such an exercise by the appellate authority by
placing reliance on the decisions of the various High Courts,
which in our view, may not have been required to have been done
as the short point, which was required to be canvassed before
the appellate authority was to establish the bona fides of the
appellant and to prove that there was no intention to evade
payment of duty. Since this aspect has not been adequately
dealt with by the appellate authority and taking note of the
peculiar facts and circumstances arising in the case on hand, we
are inclined to remand the matter back to the appellate
authority for a fresh consideration bearing in mind the conduct
of the appellant, which we have culled out in the preceding
paragraphs.
11. In the result, the appeal is allowed along with connected
application. Consequently, the writ petition stands allowed and
the order passed by the appellate authority dated 5th June, 2022
is set aside and the matter is remanded back to the appellate
authority for fresh consideration on the aspect as to whether
there was any wilful intention on the part of the appellant to
evade payment of duty.
12. The appellant would be entitled to place all the materials
in support of their claim without unnecessary burdening the
appellate authority with decisions of the various Courts, which
we find is not required to be placed before the appellate
authority as the matter is entirely factual.
13. There shall be no order as to costs.
14. Urgent photostat certified copy of this order, if applied
for, be furnished to the parties expeditiously upon compliance
of all legal formalities.
(T.S. SIVAGNANAM, J)
I agree,
(HIRANMAY BHATTACHARYYA, J.)
NAREN/PALLAB(AR.C)
