Tripura High Court
Tripura Hill Development Co. Ltd vs The State Of Tripura on 2 March, 2021
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HIGH COURT OF TRIPURA
AGARTALA
W.P(C) No.813/2017
TRIPURA HILL DEVELOPMENT CO. LTD
A company incorporated under the provisions of the Companies
Act, 1956 and having its registered Office at 29, Old Kali Bari
Road, Krishnanagar, Post Office - Agartala, District- West
Tripura, Pin Code- 799001, Represented by its Managing
Director, Nupur Bhattahcarjee (Moitra), W/o- Dr. Kulashekhar
Bhattacharjee, resident at 29, Old Kalibari Road, Krishnanagar,
P.O.- Agartala, P.S. West Agartala, District- West Tripura,
Tripura, Pin Code- 799001.
............... Petitioner(s).
Vrs.
1.THE STATE OF TRIPURA
Represented by THE CHIEF SECRETARY, Government of Tripura,
Agartala, New Secretariat Complex, PO- Kunjaban, PS - Capital
Complex, District- West, Tripura, Pin Code- 799006.
2.THE PRINCIPAL SECRETARY
to the Government of Tripura, Finance Department, New
Secretariat complex, Capital Complex, P.S. Capital Complex,
West Tripura - 799006
3.THE COMMISSIONER OF TAXES
(Revisional Authority), Government of Tripura, Finance (Excise
and Taxation) Department, P.N. Complex, Gukhabasti, P.S.
Capital Complex P.O. - Kunjaban, Agartala, Tripura West-
799006.
4.THE SUPERINTENDENT OF TAXES
Tax Audit Cell, Government of Tripura, Finance (Excise and
Taxation) Department, P.N. Complex, Gukhabasti, P.S. Capital
Complex, P.O. - Kunjaban, Agartala, Tripura West -799006
5.THE SUPERINTENDENT OF TAXES, Charge - VII,
Finance (Excise and Taxation) Department, Palace Compound,
P.S. East Agartala, P.O.- Agartala, Tripura West - 799001
............ Respondent(s).
BEFORE
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
HON'BLE MR. JUSTICE S. G. CHATTOPADHYAY
For Petitioner(s) : Mr. Biplabendu Roy, Advocate.
For Respondent(s) : Mr. A. Nandi, Advocate.
Date of hearing and
Judgment & Order : 2nd March, 2021.
Whether fit for reporting : NO
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JUDGMENT AND ORDER(Oral)
(Akil Kureshi, CJ)
Petitioner has challenged an order dated 20th April, 2017 passed by
the Superintendent of Taxes, Government of Tripura by which the said authority
demanded Rs.2,75,851/- from the petitioner for assessment period 2010 - 11 and
Rs.3,98,354/- for assessment period 2011 - 12 by way of additional value added
tax under Tripura Value Added Tax Act, 2004 (TVAT Act, for short). The
petitioner had imported several items, such as Glow Mint Moisturiser, Glow Fair
Moisturiser etc. claiming that these items were in the nature of ayurvedic
medicines and drugs on which according to the Schedule-II(a) to TVAT Act, 5%
duty would be attracted. The department however, holds the belief that these
items were in the nature of cosmetics and toilet articles which according to Entry
No.45 to Schedule -II(b) of the Act, the rate of duty would be 12.5 percent to
14.5 percent as fixed by the Government from time to time.
[2] On 25.03.2014, Superintendent of Taxes, Tax Audit Cell had
passed an order of assessment for the said assessment period of A/Y 2010 - 11
and A/Y 2011 - 12. After issuing notice to the petitioner on this disputed item,
he confirmed the duty demands holding that the imported goods would be
classified under Entry-45 of Schedule-II(b) as cosmetics. The petitioner
thereupon filed a revision petition before the Commissioner, who passed an
order dated 25.07.2015 remanding assessment order 25.03.2014 in which he set
aside the assessment for both the years and remanded the proceedings before the
Assessing Authority for making a fresh assessment after examining whether the
products would fall within the expression medicines or drugs or cosmetics. The
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Assessing Officer thereupon passed a fresh order dated 20.04.2017 in which he
observed as under:
"The instant case is taken up as per order vide No. Rev.
Case No. 06 &07/CH-VII of 2014/487-89 dated 06/10/2015 of the
Revisional Authority (Commissioner of Taxes). According notice
vide No. 571 dated 07. 01. 2015 issued to the dealers for re-
assessment purpose. But, the dealer did not appear. Thereafter, issued
another notice vide No.208 dated 20.12.2016 for appearing on
31.10.2016. At this time, the dealer submitted an application for
seeking of time on 27.12.2016. Accordingly considering the prayer
of the dealer, issued notice vide no.231 dated 17.01.2017 for
appearing on30.01.2017. Accordingly Sri N.C Paul, Advocate of the
firm appears and requested adjourn the case upto 09.02.2017 and
accordingly his submission was granted.
On 09.02.2017 Sri N. C. Paul, Advocate appears and stated
that for lst few years Glamour World Ayurvedic Co. Ltd. Kolkata is
not sending the listed products as requested them to provide sample
vide letter No. 995 dated 04.02.2016. Sri Paul Advocate also stated
that there was no direction by the Revisional Authority to give
sample of the listed items from the petitioner, But , it is appeared
from the order vide No. Rev. Case No. 06 & 07/CH-VII of 2014/487-
89 dated 06.10.2015 that the Ld. Revisional Authority directed to the
petitioner to co-operate with Assessing Authority in conducting the
twin tests s well as re-assessment in the instant cases. Though the
dealer provided two nos of samples namely Glow Moiste and Glow
Clean which have crossed the expiry date vide letter dated
25.04.2016.
Since, the dealer did not provide the samples of the items
in questions twin tests of the samples of the items could not be
sent to the Dy. Drug controller, Govt. of Tripura for twin tests to
ascertain whether there cosmetics or medicines. However, the
dealer was given opportunity to produce documentary evidence
in support of his claim that the items in questions are medicine
not cosmetics. Since, the dealer fails to produce the documentary
evidence in support of his claim, I am of the opinion that the
items in questions are cosmetics' as determined in the original
assessment order dated 25.03.2014 and computation of tax
payable by the dealer in imposition of penalty U/s 31(5) of the
TVAT Act & Interest U/S 45 of the Act stand as assessment
order dated 25.03.2014 which are under:****"
[3] This order the petitioner has challenged in the present petition.
Learned counsel for the petitioner submitted that the Tax Audit Officer had no
authority to make assessment. Subsequent order of assessment which is
challenged in this petition was without sending the samples for chemical
analysis. The entire order is bad in law. The petitioner had imported drugs and
medicines, the assessment order may be set aside.
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[4] Mr. A. Nandi, learned counsel for the department opposed the
petition contending that the petitioner did not produce any samples for chemical
analysis. The Assessing Officer therefore, had no choice but to proceed without
the aid of such chemical analysis. All the names of the substances imported by
the petitioner clearly suggest that they were in the nature of cosmetics. The
petitioner did not produce any evidence to show that the same were drugs. He
submitted that if the petitioner was dealing in drugs it ought to have a license for
such purpose. No such license was produced.
[5] Ordinarily, once an order of assessment is passed under taxing
statute, the Court would insist that the assessee who is aggrieved by such an
order file statutory appeal. However, since the petition was admitted in 2017, we
may at this stage not relegate the petition to the appeal remedy. We would
therefore, confine our inquiry into only legal questions. The previous order of
assessment was passed by Tax Audit Officer. However, this order was set aside
by the Commissioner and the assessments were re opened. The fresh order of
assessment which the petitioner has challenged in this petition has not been
passed by the Tax Audit department and the petitioner's this ground does not
survive.
[6] Coming to the central issue of the items imported by the petitioner,
it is undisputed that the petitioner had imported the said goods from one
Glamour World and the list of items imported read as under :
SL. No. Product Name Remarks
1 SOMI'S SHINE AND YOUNG
2 GLOW MIST MOISTURISER
3 GLOW FAIR MOISTURISER
4 SOMI'S SHINE GUARD
5 SLOW SHINE SOLUTION
6 GLOW Y OUNG MOISTURISER
7 SOMI'S SHINE AND CLEAN
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8 GLOW FAIR SOLUTION
9 GLOW SAFE SU N SCREEN LOTION
10 SOMI'S SHINE AND BRIGHT
11 SOMI'S SHINE AND MINT
12 GLOW HAIR SOLUTION
13 GLOW & GLOW
14 GLOW SHINE
15 GLOW SAFE
16 GLOW FRESH
17 GLOW CLEAN
18 GLOW M OIST
19 GLOW SLIM
20 GL;O9W ACTIVE
21 GLOW HAIR SHAMPOO
22 SOMI'S GLOW PLUS SOLUTION
[7] The names of the products suggest they are all in the nature of
cosmetics. These products are moisturisers, fair skin solutions, hair solutions for
better glow etc. One of them is plain and simple shampoo for glowing hair. Even
the supplier is aptly described as Glamour World. It is of course unsafe to base
our conclusions on the basis of a title of the product. However, the petitioner
himself has brought about the situation since as noted by the Assessing Officer
despite opportunity been given, the petitioner failed to provide samples which
could be sent for chemical analysis. We have on record a letter dated 04.02.2016
written by the Superintendent of Taxes to the petitioner asking the petitioner to
provide samples of such products. His recording of the order that despite
opportunities, the petitioner did not supply the samples, cannot be disputed
without any firm basis for the same.
[8] In the result, petition is dismissed. Pending application(s), if any,
also stands disposed of.
(S. G. CHATTOPADHYAY),J. (AKIL KURESHI),CJ.
Dipankar
