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Judgment
Heard learned counsel for the petitioner and learned counsel for the State.
The petitioner is aggrieved by the impugned Judgement dated 6.4.2017, passed by the Commercial Taxes Tribunal, Ranchi, (herein after referred to as the 'Tribunal'), in Revision Petition No. HZ-207 of 2016, dismissing the revision filed by the petitioner against the order dated 19.6.2015, passed by the Commissioner of Commercial Taxes, Ranchi, confirming the original order dated 5.12.2014, passed by respondent No. 4, the Commercial Taxes Officer, Chordaha Check Post, Chowparan, District-Hazaribag, whereby, penalty of Rs. 4,08,093/- was imposed upon the petitioner Transport Company, being thrice the amount of Rs. 1,36,031.05, assessed as leviable tax on the transformers, which were being transported by the petitioner Transport Company and intercepted at the Check Post on the border of the State of Jharkhand.
According to the petitioner's case, the petitioner was transporting the transformers from BHEL, Jhansi, to BSL, Bokaro. The transformers were being transported on vehicle No. UP-78-AT-0911 from BHEL, Jhansi, which left Jhansi on 18.11.2014. In the way, the vehicle suffered break down on 20.11.2014, thereafter, another vehicle had to be arranged and the transformers were re-loaded on another vehicle No. UK-078-CA-0781 on 28.11.2014, which proceeded towards the destination. When the vehicle reached the border on 30.11.2014, it was intercepted at the Check Post. As the driver of the vehicle was not having the road permit in Sugam-G form, as prescribed under the law, after giving the due opportunity of hearing, the order was passed on 5.12.2014, imposing the penalty upon the petitioner transporter. As mentioned above, the revision before the Commissioner of Commercial Taxes, as well as the revision filed before the Tribunal, were also dismissed.
Learned counsel for the petitioner has submitted that the impugned orders, passed by the concerned authorities, as well as the Tribunal, cannot be sustained in the eyes of law, inasmuch as, due to break down suffered by the first vehicle, the road permit, which was originally issued to the petitioner, had expired and accordingly, the same was not taken into consideration by the concerned authorities and the vehicle carrying the consignment was intercepted. A fresh road permit was produced, but the same was not taken into consideration by the concerned authorities and penalty was imposed. Learned counsel has further submitted that the transformers, which were being transported to BSL, Bokaro, were the capital goods of BSL, Bokaro, and were exempted from tax. Since there was no tax liability on the goods which were being transported, no penalty could be imposed upon the petitioner transporter. Learned counsel has drawn our attention towards Section 72 of the Jharkhand Value Added Tax Act, 2005 (hereinafter referred to as the 'JVAT Act'), relevant portions of which read as follows:-
"72. Establishment of Check Posts, Inspection of Goods in Transit and Movement of Goods across the State: - (1) The Government may, with a view to prevent or check avoidance or evasion of tax, by notification in the official gazette, direct the establishment of the check post or barrier at such places as may be specified in the notification, and every officer who exercises powers and discharges his duties at such check post, by way of inspection of documents produced and goods being moved, shall be Officer in-charge.
(3) The driver or person in charge of vehicle or goods carrier in movement, whether for the purpose of sub-section (1) or (2) of this Section, shall -
(a) carry with him the records of the goods including challan, bills of sale or dispatch memos and prescribed declaration form duly filled in and signed by the consignor of goods carried.
(b) stop the vehicle or goods carrier at every check post set up under sub Section (1) or at any other place by an officer authorised by the Commissioner in this behalf;
(c) produce all the documents including the prescribed form relating to the goods before the officer in charge of the check post or the authorised officer;
(d) give all the information in his possession relating to the goods;
(e) allow the inspection of the goods for search of the vehicle by the officer in charge of the check post or any authorised officer.
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(5) Where any goods in movement are without documents, or are not supported by documents as referred to in sub Section (3), or documents produced appear to be false or forged, the officer in charge of the check post or the officer empowered under sub-Section (4), may -
(a) direct the driver or the person in-charge of the vehicle or goods carrier or of the goods not to part with the goods in any manner including by transporting or re-booking, till a proper verification is done or an inquiry is made, which shall not take more than seven days; or
(b) seize the goods for reasons to be recorded in writing and shall give receipt of the goods to the person, from whose possession of control they are seized;
(6) The officer in charge of the check post or the officer empowered under sub Section (4), after having given the person in charge of the goods a reasonable opportunity of being heard and after having held such inquiry as he may deem fit, shall impose for possession or movement of goods, whether seized or not, in violation of the provisions of clause (a) of sub Section (3) or for submission of false or forged documents or prescribed form, a penalty equal to the amount of three times of the tax, leviable on such goods, or rupees five thousand whichever is greater.
*** *** ***"
Placing reliance upon Section 72(1) of the Act, learned counsel for the petitioner submitted that the check posts are established with a view to prevent or check avoidance or evasion of tax, and in the present case, since there was no tax liability, there can be no penalty upon the petitioner. Learned counsel, accordingly, submitted that the impugned orders / Judgment cannot be sustained in the eyes of law.
Learned counsel for the State, on the other hand, has opposed the prayer and has drawn our attention towards the Judgment, passed by the Tribunal, paragraph Nos. 23 and 24 whereof read as follows:-
"23. Petitioner is not able to even show whether any road permit was originally issued by SAIL Bokaro and was received by the petitioner before departure from Jhasi with the original vehicle UP-78-AT-0911. Perhaps there was no permit because there is no mention of road permit details on the invoice issued by BHEL Jhasi.
Thus the conclusion of the above discussion is that there is no sufficient explanation by the petitioner of the long gaps since after booking of the goods on 30.09.14. There was no original road permit for transportation of these two transformers nor the petitioner is able to produce new road permit before entering into the territory of Jharkhand. The new road permit dated 04.12.14 (Exhibit-3) would have no effect for the purposes of law and thus it has been rightly not accepted by the learned CTO. It is also clear from the provisions that penalty was liable to be imposed for importation of taxable goods like transformers without furnishing the declaration i.e. the road permit Sugam 504 G."
Learned counsel for the State has also drawn our attention towards the order dated 19.6.2015, passed by the Commissioner of the Commercial Taxes, which shows that the driver of the vehicle was not carrying any valid road permit, in the form of Sugam-G and it was found that the transit pass was issued only on 4.12.2014. Learned counsel for the State has submitted that the transformers were intercepted on 30.11.2014, while being transported, without any road permit, and there was nothing to show that the road permit was issued for transporting the transformers, but the road permit had expired due to break-down of the vehicle. It is also pointed out by learned counsel for the State that even the expired road permit was not produced and, accordingly, in absence of any document, the Tribunal has held that there was no clue as to when the invoices were issued on 30.9.2014, why the transformers left BHEL, Jhansi, on 18.11.2014, and where the vehicle was roaming between 30.9.2014 to 18.11.2014. Learned counsel has also submitted that in absence of the road permit, the authorities concerned had no option, but to impose the penalty. Learned counsel has submitted that sub-Section (5) of Section 72 of the JVAT Act, categorically states that the movements of goods have to be with the valid documents and if the movement is found to be without documents, the penalty has to be imposed under sub-Section (6) of Section 72 of the JVAT Act. Learned counsel, accordingly, submitted that there is no illegality in the impugned orders / Judgement, passed by the respondent authorities and the Tribunal.
Having heard learned counsels for both the sides and upon going through the record, we find from the impugned order passed by the Commissioner, Commercial Taxes, as well as from the impugned Judgement passed by the Tribunal, that the petitioner had taken a plea that in the case of one M/s Usha International, whose vehicle was intercepted, the driver of the said vehicle was having the Sugam-G permit, but the number of the truck was not mentioned in it, it was held that since no case of tax evasion was made, the penalty imposed was not proper and was accordingly set aside. The Commissioner, Commercial Taxes as well as the Tribunal, both have dealt with this case and have found that in the case of M/s Usha International, the driver was having the Sugam-G permit, but in the present case, the petitioner was not having any transit permit at all, rather the online permit was regenerated on 4.12.2014, i.e., after the vehicle was intercepted, which also showed that the transformers were being transported without any valid road permit. The Tribunal has also given a finding that since there was nothing on the record to show that the voltage transformers were being transported between 30.9.2014 to 18.11.2014 with valid documents, it was difficult to conclude that the transformers could be treated as capital goods, rather they were the common transformers, which may be used by any other electric generating and transmitting unit, and were liable to tax. Accordingly, the tax was assessed and the penalty of three times the tax liability, was imposed upon the petitioner.
In the facts of this case, we find that there is concurrent findings of facts by the taxing authorities, as well as Tribunal, that the driver of the vehicle was not carrying any valid road permit Sugam-G, and the road permit produced by the petitioner was re-generated after the date on which the vehicle was intercepted. The expired road permit, as claimed by the petitioner was never produced when the vehicle was intercepted. The Tribunal has also found that since there was nothing on the record to show that the voltage transformers were being transported with valid documents, it was difficult to conclude that the transformers could be treated as capital goods, rather they were the common transformers, which may be used by any other electric generating and transmitting unit, and were liable to tax. These findings of facts cannot be interfered with, in exercise of the writ jurisdiction.
In that view of the matter, the petitioner was liable to pay the penalty, amounting to three times the leviable tax, under sub-Section (6) of Section 72 of the JVAT Act, which, in our considered view, has been rightly imposed upon the petitioner.
Consequently, we do not find any illegality either in the impugned original order dated 5.12.2014, passed by the Commercial Taxes Officer, Chordaha Check Post, Chowparan, District-Hazaribag, or the order dated 19.6.2015, passed by the Commissioner of Commercial Taxes, Ranchi, or in the Judgement dated 6.4.2017, passed by the Commercial Taxes Tribunal, Ranchi, in Revision Petition No. HZ-207 of 2016.
There is no merit in this writ application and the same is, accordingly, dismissed.