Calcutta High Court (Appellete Side)
Bengal vs Ashok Kuamr Sureka on 12 May, 2022
Item No.5.
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
HEARD ON: 12.05.2022
DELIVERED ON:12.05.2022
CORAM:
THE HON'BLE MR. JUSTICE T. S. SIVAGNANAM
AND
THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA
MAT 470 of 2022
With
I.A. No.CAN 1 of 2022
Assistant Commissioner, State Tax, Durgapore Range, Government of West
Bengal.
VERSUS
Ashok Kuamr Sureka, Proprietor of Subham Steel
Appearance:-
Md. T. M. Siddique,
Mr. Soumitra Mukherjee,
Mr. Debasish Ghosh .....for the appellant.
Mr. Ankit Kanodia,
Mr. Himangshu Kumar Ray,
Ms. Megha Agarwal .. for the respondent.
JUDGMENT
(Judgment of the Court was delivered by T.S. SIVAGNANAM, J.)
1. This intra Court appeal at the instance of the department
is directed against the order dated 1st March, 2022 in W.P.A.
No.11085 of 2021. In the said writ petition, the respondent
herein challeged the order passed by the Joint Commissioner
(Appeal), CGST and CX, Kolkata Appeal - I Commissionerate dated
18th March, 2021. The said appeal filed before the Joint
Commissioner was directed against the order of demand of tax and
penalty in Memo dated 11th September, 2019 issued by the
Assistant Commissioner of State Tax, Durgapur Range and summary
of order under reference dated 11th September, 2019 passed by the
Assistant Commissioner of State Tax, Kolkata South.
2. The learned single Bench while noting the fact found that
the detention of the vehicle along with the goods and the demand
of tax and penalty not to be justified on the ground that the e-
way bill, which was being carried in the vehicle transporting
the goods had expired on the midnight of 8 th September, 2019 and
the goods were being transported on 9 th September, 2019 and the
vehicle was intercepted at 1.30 p.m.(noon) and according to the
writ petitioner the vehicle transporting goods had broken down
and on account of which, there was delay and there was no
willful intention to evade payment of tax. The learned single
Bench was convinced with the factual position and has disposed
of the writ petition by setting aside the order dated 11 th
September, 2019 as well as the order of the appellate authority
dated 18th March, 2021 and consequently held that the
respondent /writ petitioner will be entitled to get refund of
penalty and tax paid on protest subject to compliance of all
legal formalities. The department is aggrieved by such order.
Hence, this appeal.
3. The learned counsel appearing for the appellant would
submit that neither before the appellate authority nor in the
pleadings in the writ petition, the respondent had stated
anything about the vehicle being broken down or that non-
extension of the validity of the e-way bill was not deliberate
and willful but due to the circumstances as stated. When such
was the factual position, the learned single Bench ought not to
have allowed the writ petition by accepting the said argument,
which was placed for the first time when the writ petition was
moved before the Court.
4. Further, on fact, the learned counsel appearing for the
appellant had elaborately referred to the findings recorded by
the appellate authority and argued that the learned writ Court
ought not to have interfered with the order of demand of tax and
penalty.
5. The learned counsel appearing for the respondent / writ
petitioner submitted that the bona fides of the writ petitioner
has to be considered and this was taken note of by the learned
writ Court and relief was granted. In order to show the bona
fides of the writ petitioner, the learned counsel had referred
to the documents, which formed part of the records of the writ
Court, more particularly, the tax invoice raised by M/s. Bhaskar
Steel and Ferro Alloy Private Limited dated 7th September, 2019,
e-way bill dated 7th September, 2019, which was valid upto
midnight of 9th September, 2019 giving the details of the
despatch from SRMB Srijan Private Limited to Shubham Steels, the
writ petitioner having its registered office in Kolkata. It is
further submitted that he writ petitioner had raised a tax
invoice in favour of Om Dayal Educational and Research Society,
which had its registered office at Kolkata but the goods had to
be delivered as per the instruction of the purchaser at Delhi
Public School, Sector - 2D, Bidhannagar, Durgapur and in this
regard, the writ petitioner had raised a second e-way bill dated
7th September, 2019 since the distance between SRMB Srijan Pvt.
Ltd. and the place of delivery was 9 kilometers, the e-way bill
was valid upto 8th September, 2019. Furthermore, it is submitted
that the vehicle number in both the e-way bills will clearly
show that it is the same vehicle.
6. We have elaborately heard Md. T. M. Siddique, learned
advocate for the appellant and Mr. Ankit Kanodia, learned
advocate appearing for the respondent.
7. After hearing the learned Advocates for the parties, we are
of the view that in the instant case, the bona fides of the writ
petitioner has to be tested on the documents, which were
available on record. Firstly, we find that the tax invoice has
been raised by Bhaskar Steel and Ferro Alloy Pvt. Ltd. dated 7 th
September, 2019. There is no dispute as regards the quantity
and description of the goods. The said vendor had raised the e-
way bill dated 7th September, 2019 as the goods were to be
despatched from SRMB Srijan Pvt. Ltd. to the writ petitioner,
who had its registered office at Kolkata. The said e-way bill
was valid upto 9th September, 2019 since the approximate distance
was about 168 kilometers. The writ petitioner's case was that
they are traders and they had a supply order from Om Dayal
Educational and Research Society, which also has its registered
office at Kolkata but, however the goods had to be shifted to a
place in Durgapur. Therefore, the writ petitioner raised a
second e-way bill on 7th September, 2019 and since the distance
from SRMB Srijan Pvt. Ltd., Durgapur to the Delhi Public School,
Durgapur was only 9 kilometers, the e-way bill was valid only
for one day, i.e. 7th September, 2019 to 8th September, 2019
(midnight).
8. We need not go into the controversy as to whether there was
a break down of the vehicle, etc. The case has to be approached
by considering the bona fides of the transaction as to whether
the case warrants detention of the goods and collection of tax
and penalty. Admittedly, the first e-way bill dated 7 th
September, 2019 was valid upto 9th September, 2019. Therefore,
in the absence of second e-way bill, the tax authorities at
Durgapur could not have intercepted or detained the vehicle.
Therefore, the explanation offered by the respondent / writ
petitioner was an acceptable explanation and a case cannot be
made out that there was a deliberate and willful attempt on the
part of the respondent / writ petitioner to evade payment of tax
so as to justify invocation of the power under Section 129 of
the Act.
9. Thus, we are of the view that the relief granted by the
learned writ Court is fully justified. However, we substantiate
the said conclusion by the reasons which we have assigned to the
preceding paragraphs.
10. In the result, the appeal and the application filed by the
department are dismissed and the appellant is directed to
process the application for refund filed by the respondent on 7 th
March, 2022 and orders be passed thereon in terms of the
direction issued by the learned writ Court within a period of
two weeks from the date of receipt of the server copy of this
judgment and order.
11. We make it clear that we have examined the facts of the
case on hand, the bona fides of the respondent / writ petitioner
and then arrived at a conclusion that it is not a case of
willful attempt to evade payment of tax and therefore, the
decision having been rendered on the peculiar facts cannot be
treated as a precedent.
12. 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)
