Calcutta High Court (Appellete Side)
Medha Servo Drives Private ... vs The Assistant Commissioner Of ... on 17 November, 2022
Item no. 08
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice T.S. Sivagnanam
And
The Hon'ble Justice Hiranmay Bhattacharyya
MAT 1751 of 2022
with
IA No.: CAN 1 of 2022
IA No.: CAN 2 of 2022
Medha Servo Drives Private Limited & Anr.
vs.
The Assistant Commissioner of State Tax, Bureau of Investigation
(South Bengal), Durgapur Zone & ors.
Appearance:
For the Appellants : Mr. Ankit Kanodia
Ms. Megha Agarwal
Mr. Jitesh Sah
For the Respondents : Mr. A. Ray, Ld. G.P.
Mr. T.M. Siddiqui
Mr. D. Ghosh
Mr. D. Sahu
Heard on : 17.11.2022
Judgment on : 17.11.2022
T.S. Sivagnanam J.:
In Re. CAN 1 of 2022
We have perused the affidavit filed in support of the
application for condonation of delay and we are satisfied that sufficient
causes have been shown in preferring the instant appeal. Hence, the
delay is condoned and the application for condonation of delay is
allowed.
In Re : MAT 1751 of 2022
IA No. CAN 2 of 2022
This intra-Court appeal filed by the writ petitioners is
directed against the orders dated 20 th April, 2022 and 22nd June, 2022
passed in WPA No. 6537 of 2022, in which the learned Single Bench
extended the time for filing affidavit-in-opposition by the respondent and
simultaneously declined to grant any interim order to the appellant.
With this grievance the appellants are before us by way of this appeal.
We need not to take much trouble to take a decision in this
matter. In fact, the writ petition itself can be disposed of. We are
convinced to say so after reading the order passed by the appellate
authority, being the Senior Joint Commissioner of State Tax (Appeals),
Commercial Estate, City Centre, Durgapur dated 6.4.2022. The order is
a 23 pages order. At the first blush, it gives us an impression that this
is a speaking order after discussing all issues which were canvassed by
the appellants/writ petitioners. However, on a closer reading of the
order, we find that discussion is only at page 23 and page nos.1 to 22
are extract of the submissions made by the appellants and various
decisions which were cited by the appellants and also certain decisions
which the appellate authority appears to have included on his own. In
any event, the short question is to whether full tax and penalty could
have been demanded from the appellants on the alleged ground that
they contravened Section 129(1)(a) of the Central Goods and Services
Tax Act, 2017 read with West Bengal Goods and Services Tax Act, 2017.
The case of the appellants is that a single invoice was raised by
the appellants to M/s. Chittaranjan Locomotive Works, a public sector
undertaking, carrying on operation in the State of West Bengal. The
goods which were to be supplied to the said Public Sector Undertaking
was of very huge in size and, therefore, the appellants had raised
multiple e-weigh bills and loaded the goods into three trucks. One of
the three trucks had already reached the consignee which was not
disputed by the Revenue. The other two trucks could not reach the
destination within the validity of the e-weigh bills i.e. 23.08.2021. The
vehicle along with the goods were intercepted by the authorities on
25.08.2021. The appellants had explained that there is absolutely no
mens rea on their part and there was no intention to evade payment of
tax. Nevertheless, the Adjudicating Authority had imposed full tax and
penalty upon the appellants and aggrieved by such order, the appellant
had filed the appeal before the First Appellate Authority. The short
issue which the Appellate Authority was required to consider as to
whether there is any mens rea on the part of the appellants in
attempting to evade payment of tax. Unfortunately, though the order
passed by the Appellate Authority is 22 pages order, there is absolutely
no discussion on the question as to whether the mens rea was
established. It is well settled that by merely using the expression "mens
rea", it would not amount to concluding that there was a willful attempt
on the part of the dealer to evade the payment of tax. The concerned
authority or the First Appellate Authority, is required to record the
reasons in writing as to how and in what manner mens rea was
established. Since this is lacking in the order passed by the Appellate
Authority dated 6.4.2022, we are of the considered view that the matter
should be remanded back to the Appellate Authority for fresh
consideration to decide this short issue as to whether there is any mens
rea on the part of the appellants to evade payment of duty.
Accordingly, the appeal and the connected application stand
allowed. Consequently, the writ petition is allowed and the orders
passed by the learned Single Judge dated 20.04.2022 and 22.06.2022
are set aside and the matter stands remanded to the Appellate Authority
for fresh consideration and the Appellate Authority is directed to
consider the aspect of the mens rea and afford an opportunity of
personal hearing to the authorized representative of the appellants and
pass a fresh order on merits and in accordance with law.
We make it clear that we have not dealt with the matter on
merits and it is the Appellate Authority to take a decision without being
influenced in any manner by any observations which we have made in
this order.
The appellants have furnished a bank guarantee for the entire
amount of tax and penalty. Since we have set aside the order passed by
the Appellate Authority and remanded the matter back to the Appellate
Authority for fresh consideration, the Appellant/Writ petitioner is not
required to keep the bank guarantee alive. Instead of bank guarantee
we direct the appellants to furnish a bond to the satisfaction of the
concerned authority for the entire amount of tax and penalty.
There shall, however, no order as to costs.
(T. S. Sivagnanam, J.)
(Hiranmay Bhattacharyya, J.)
RP/Amitava (AR. CT.)
