{"id":61293,"date":"2009-12-07T00:00:00","date_gmt":"2009-12-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-vardhman-industries-ltd-vs-the-state-of-punjab-and-another-on-7-december-2009"},"modified":"2018-08-04T17:25:03","modified_gmt":"2018-08-04T11:55:03","slug":"ms-vardhman-industries-ltd-vs-the-state-of-punjab-and-another-on-7-december-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-vardhman-industries-ltd-vs-the-state-of-punjab-and-another-on-7-december-2009","title":{"rendered":"M\/S Vardhman Industries Ltd vs The State Of Punjab And Another on 7 December, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
M\/S Vardhman Industries Ltd vs The State Of Punjab And Another on 7 December, 2009<\/div>\n
      IN THE HIGH COURT OF PUNJAB AND HARYANA AT\n\n                            CHANDIGARH.\n\n                                                    VATAP No. 12 of 2009\n                                                Date of Decision: 7.12.2009.\n\n\nM\/s Vardhman Industries Ltd.\n                                     ..........Appellant\n            Versus\nThe State of Punjab and Another\n                                  ..........Respondents\n\nCORAM:      HON'BLE MR.JUSTICE M.M.KUMAR\n            HON'BLE MR.JUSTICE JASWANT SINGH.\n\nPresent:    Mr. K.L.Goyal, Senior Advocate with\n            Mr. Manoj Rohilla,Advocate for the Appellants.\n            Mr. Piyush Kant Jain,Addl.A.G.Punjab for the respondents.\n\n1. To be referred to the Reporter or not ?\n2. Whether the judgement should be reported in the Digest ?\n\nJASWANT SINGH,J.\n<\/pre>\n
            This order shall dispose of seven VAT Appeals bearing Nos.<\/p>\n
VATAP 12, 13,14,15,16,17 and 19 of 2009, involving common question of<\/p>\n
law and similar facts, filed by the appellant-assessee under Section 68(2) of<\/p>\n
the Punjab Value Added Tax Act,2005 (for short VAT Act) against the<\/p>\n
common order dated 3.10.2008 (Annexure A\/8) passed by the Tribunal<\/p>\n
whereby seven Appeal Nos.(VAT) 186-192 of 2007-08 filed by the<\/p>\n
appellant-assessee were dismissed. Facts are being noticed from VATAP<\/p>\n
No.12 of 2009.\n<\/p>\n
            The appellant-assessee is engaged in the manufacturing and<\/p>\n
sale of iron and steel goods with its manufacturing unit at Beopar (Rajpura)<\/p>\n
District Patiala and its registered office at GT Road, Sahnewal, District<\/p>\n
Ludhiana. Appellant-assessee is registered under the Punjab General Sales
\n VATAP No. 12 of 2009                                           2<\/span><\/p>\n
Tax Act,1948 (for short PGST Act) and Central Sales Tax Act,1956 (for<\/p>\n
short the CST Act) and subsequently under the VAT Act. It has also been<\/p>\n
granted exemption from payment of tax for a period of seven years w.e.f.<\/p>\n
27.3.2000 to 26.3.2007 for an amount of Rs.28,50,58,500\/- vide its<\/p>\n
exemption certificate dated 27.7.2001 (Annexure A\/1).    Subsequent to the<\/p>\n
enforcement of VAT Act w.e.f. 1.4.2004 it was granted an entitlement<\/p>\n
certificate for tax exemption subject to the un-utilised maximum of<\/p>\n
Rs.19,57,82,271\/- for the remaining period w.e.f. 1.4.2005 to 26.3.2007<\/p>\n
vide entitlement certificate dated 13.6.2005 (Annexure A\/2).<\/p>\n
            It is claimed that goods were sold by the appellant-assesee<\/p>\n
(consignor) to consignee- M\/s Misbah Fabrication, Hari Singh Street,<\/p>\n
Srinagar vide invoice no.3858 dated 26.3.2007 and earmarked for loading in<\/p>\n
truck no. JK03A 1334 vide GR No. 2075 dated 26.3.2007 in the name of<\/p>\n
Kaka Transport. The truck bearing No. JK03A 1334 reported at ICC<\/p>\n
Madhopur on 30.3.2007. It is not disputed that the required documents as<\/p>\n
envisaged under sub section (2) of Section 51 of the VAT Act were<\/p>\n
presented at the ICC Center, however, the goods were detained by the<\/p>\n
officer in charge under sub section (6) (a) of Section 51 of the VAT Act by<\/p>\n
doubting the genuineness of the transaction\/documents as the arrival and<\/p>\n
reporting of the vehicles at the ICC Center had been after four days of the<\/p>\n
date of invoice. Similarly, in the connected six appeals six other trucks<\/p>\n
containing goods were also detained since those vehicles had also taken<\/p>\n
four to ten days from the date of invoice i.e. 26.3.1997 in covering a<\/p>\n
distance of about 250 kilometers from Rajpura to Madhopur.           It was<\/p>\n
therefore, found that the invoices were ante dated to evade tax. Matter was<\/p>\n
reported to the designated officer\/AETC, who issued notices in all the cases
\n VATAP No. 12 of 2009                                             3<\/span><\/p>\n
and conducted an enquiry. AETC found that there was an attempt to evade<\/p>\n
tax and accordingly exercising power under clause (b) of sub section (7) of<\/p>\n
Section 51 of the VAT Act imposed penalty vide order dated 13.4.2007<\/p>\n
(Annexure A\/5). The appeal filed before the DETC -cum- Joint Director<\/p>\n
Investigation, Jalandhar Division, was also dismissed vide order dated<\/p>\n
9.8.2007 (Annexure A\/6). Similar penalties were imposed in the connected<\/p>\n
appeals vide identical order dated 13.4.2007 and the separate appeals filed<\/p>\n
were also dismissed vide order dated 9.8.2007. All the appeals arising out of<\/p>\n
the orders dated 13.4.2007 and 9.8.2007 were dismissed by the Tribunal<\/p>\n
vide impugned common order dated 3.10.2008 (Annexure A\/8).<\/p>\n
            The appellant-assesee has filed the present appeals proposing to<\/p>\n
raise the following substantial questions of law:-\n<\/p>\n
            “(i) Whether the Designated Officer at ICC can impose<\/p>\n
            any penalty u\/s 51(7)(b) of the Punjab Vat Act 2005 for<\/p>\n
            an offence committed (if any) under the Central Sales<\/p>\n
            Tax Act,1956?\n<\/p><\/blockquote>\n
            (ii)Whether, after the goods are voluntarily reported at<\/p>\n
               the ICC, before exit of the goods from Punjab State,<\/p>\n
               the ICC authorities are authorised to make an enquiry<\/p>\n
               regarding alleged evasion of tax, which is in the<\/p>\n
               domain of the Assessing Authority where penalty u\/s<\/p>\n
               56 can be imposed, if any offence is committed?<\/p>\n<\/blockquote>\n
            (iii)Whether the sale of goods where bills have been<\/p>\n
               issued on 26.3.2007 is complete when the goods are<\/p>\n
               earmarked or delivered to the vehicles for its onward<\/p>\n
               transmission, even if the movement of the goods has
\n VATAP No. 12 of 2009                                           4<\/span><\/p>\n
               taken place on a later date?”<\/p><\/blockquote>\n
             At the time of hearing issue no.(iii) was re-phrased as “Whether<\/p>\n
it could be said that there was an attempt to evade or avoid payment of tax<\/p>\n
by mere delayed movement of goods when the sale invoices\/bills had been<\/p>\n
issued on 26.3.2007, goods were earmarked and goods receipts issued to the<\/p>\n
vehicles for their onward transmission to the consignees on the same date”.<\/p>\n
             Learned counsel for the appellant-company has argued that the<\/p>\n
goods were     voluntarily reported at ICC Center and all the statutory<\/p>\n
documents required under sub section (2) of Section 51 of the VAT Act<\/p>\n
were produced there and therefore the designated officer\/AETC could not<\/p>\n
legally exercise jurisdiction under clause (b) of sub section (7) of Section<\/p>\n
51 and impose penalty for alleged attempt to evade tax which otherwise falls<\/p>\n
within the exclusive domain of the assessing authority under Section 56 of<\/p>\n
the VAT Act, if any such alleged offence is committed. He further argued<\/p>\n
that when the sale of goods had taken place and sale invoices had been<\/p>\n
issued on 26.3.2007 and the goods had been earmarked and delivered to the<\/p>\n
transporter vide valid goods receipt for their onward transmission to the<\/p>\n
consignee, then in such a situation merely because the movement of the<\/p>\n
goods had taken place at a later date could not give rise to a presumption<\/p>\n
that there was an attempt to evade tax incurring any penalty under section<\/p>\n
51(7)(b)   of the VAT Act. Learned counsel further argued that the<\/p>\n
transactions in dispute were inter state sales and assuming for the sake of<\/p>\n
arguments that there was any attempt to evade central sales tax, even then<\/p>\n
keeping in view the provisions of Section 51(7)(b) of the VAT Act, the<\/p>\n
designated officer\/AETC could not exercise jurisdiction under said<\/p>\n
provision as no tax was due under the VAT Act.\n<\/p>\n
 VATAP No. 12 of 2009                                                 5<\/span><\/p>\n
             Per contra learned Additional Advocate General appearing for<\/p>\n
the respondent State has argued that the Tribunal being the final authority<\/p>\n
regarding determination of questions of facts and the             Tribunal having<\/p>\n
determined that there was       an attempt to evade tax by ante dating the<\/p>\n
bills\/sale invoices, there was no occasion for this Court to interfere under<\/p>\n
Section 68(2) of the VAT Act. Learned counsel in support of the findings<\/p>\n
argued that the fact of issue of 136 bills on 26.3.2007 i.e. the last date before<\/p>\n
the expiry of exemption certificate coupled with late movement of goods<\/p>\n
raises an unimpeachable presumption that there was an attempt to evade<\/p>\n
tax. Learned counsel by referring to Section 9 of CST Act further argued<\/p>\n
that the power and authority to administer and realise central sales tax has<\/p>\n
been vested in the State authorities and therefore, in view of the attempt to<\/p>\n
evade central sales tax by the assessee-company, the designated<\/p>\n
officer\/AETC had the jurisdiction under Section 51(7)(b) of the VAT Act to<\/p>\n
impose penalty.\n<\/p>\n
             Having heard learned counsel for the parties and giving our<\/p>\n
thoughtful considerations to the rival submissions we are of the considered<\/p>\n
opinion that these appeals deserve to be allowed in favour of the appellant-<\/p>\n
assessee and against the revenue.\n<\/p>\n
             Before embarking upon to decide the issues, it would             be<\/p>\n
relevant to refer to provisions of Section 51(7)(b) of the VAT Act, which are<\/p>\n
reproduced hereunder:-\n<\/p>\n
             “51(7)(b)    The    designated    officer   shall,     before<\/p>\n
             conducting the enquiry, serve a notice on the consignor<\/p>\n
             or consignee of the goods detained under clause (a) of<\/p>\n
             sub-section (6) and given him an opportunity of being
\n VATAP No. 12 of 2009                                           6<\/span><\/p>\n
            heard and if, after the enquiry, such officer finds that<\/p>\n
            there has been an attempt to avoid or evade the tax due<\/p>\n
            or likely to be due under this Act, he shall, by order<\/p>\n
            impose on the consignor or consignee of the goods, a<\/p>\n
            penalty which shall be equal to thirty percent of the<\/p>\n
            value of the goods. In case he finds otherwise, he shall<\/p>\n
            order release   of the goods and the vehicle, if not<\/p>\n
            already released, after recording reasons in writing and<\/p>\n
            shall decide the matter finally within a period of<\/p>\n
            fourteen days from the commencement of the enquiry<\/p>\n
            proceedings.”\n<\/p>\n
            A plain reading of clause(b) of sub section (7) of Section 51 of<\/p>\n
the VAT Act makes it clear that the designated officer can impose a penalty<\/p>\n
equal to 30% of the value of the goods either on the consignor or consignee<\/p>\n
of the goods if he, after enquiry, finds that there is an attempt to avoid or<\/p>\n
evade tax due or likely to be due under the Act (the Act is defined under<\/p>\n
sub section (1) of Section 1 to mean        the Punjab Value Added Tax<\/p>\n
Act,2005). However, before conducting the enquiry the officer is required to<\/p>\n
serve a notice on the consignor or consignee of the goods detained under<\/p>\n
Section 51(6)(a) of the VAT Act and give him opportunity of being heard.<\/p>\n
            It is not disputed that the appellant company was entitled to tax<\/p>\n
exemption for a period of seven years w.e.f. 27.3.2000 to 26.3.2007 for an<\/p>\n
amount of Rs.28,50,58,500\/-, whichever was earlier. It is also not in dispute<\/p>\n
that on 26.3.2007 the appellant company even after the sale of goods worth<\/p>\n
the value stated in 136 sale invoices dated 26.3.2007 had an amount of<\/p>\n
unavailed\/un-utlised exemption limit of tax to its credit. It is also not
\n VATAP No. 12 of 2009                                          7<\/span><\/p>\n
disputed that truck bearing no.JK03A 1334 had on its own reported at the<\/p>\n
ICC Center on 30.3.2007 and had submitted all the statutory documents to<\/p>\n
the officer incharge of the center as required under sub section (2) of<\/p>\n
Section 51 of the VAT Act (likewise all the trucks involved in the<\/p>\n
connected appeals had also reported at the ICC Center and submitted the<\/p>\n
required documents). The officer incharge of ICC Center by exercising the<\/p>\n
powers under sub section (6)(a) of Section 51 of the VAT Act detained the<\/p>\n
goods since he had reasons to suspect that there was an attempt to evade<\/p>\n
payment of tax on the ground that there was movement of goods after a<\/p>\n
delay of four days. It is also apparent that the detaining officer had<\/p>\n
submitted the proceedings alongwith the concerned record to the designated<\/p>\n
officer\/AETC for conducting necessary enquiry and passing of an<\/p>\n
appropriate order under clause (b) of sub section (7) of Section 51 of the<\/p>\n
VAT Act. The appellant-assessee to the notice issued took the stand that the<\/p>\n
goods had been sold on 26.3.2007 in pursuance of purchase orders and<\/p>\n
accordingly sale invoices had been issued, goods earmarked for clearance<\/p>\n
and goods receipt issued in the name of two local truck unions on the same<\/p>\n
day for onward transmission of goods. Since the assessee company enjoyed<\/p>\n
the exemption on the date of the sale, therefore, no tax was payable and<\/p>\n
hence there was no question of any attempt to evade tax. The assessee<\/p>\n
company also produced an inspection report dated 27.3.2007 of the Excise<\/p>\n
Authorities indicating the clearance of certain goods and issue of last bill<\/p>\n
bearing no.3886 dated 26.3.2007. It cannot be disputed that the goods<\/p>\n
detained   in all the connected appeals were sold vide invoices bearing<\/p>\n
numbers prior to bill no.3886 dated 26.3.2007.    Therefore, this inspection<\/p>\n
report dated 27.3.2007 from the Excise record completely demolishes the
\n VATAP No. 12 of 2009                                            8<\/span><\/p>\n
stand of the revenue that the bills\/ sale invoices had been ante dated with a<\/p>\n
view to avoid payment of tax.\n<\/p>\n
            It is further apparent that the assessee company        has after<\/p>\n
26.3.2007 sold and dispatched goods and has paid tax on the same. It is a<\/p>\n
different matter that number of such transactions is quite small in<\/p>\n
comparison to the sale transactions entered upon on 26.3.2007. No evidence<\/p>\n
has been led by the revenue to show that the consignees or purchase orders<\/p>\n
or the goods receipts relating to transaction on 26.3.2007 are fictitious. It<\/p>\n
has also not been shown that there is any statutory requirement laying down<\/p>\n
that the goods have to be moved and reported within a particular time frame<\/p>\n
before any ICC Center after the issue of sale invoice or goods receipt. It is<\/p>\n
also not disputed that movement of goods in pursuance of 136 sale invoices<\/p>\n
dated 26.3.2007 except the seven involved in the present appeals were<\/p>\n
cleared by the ICC Centers where also the movement of goods was delayed.<\/p>\n
The explanation put forth by the assessee for delayed movement is that there<\/p>\n
was non-availability of the trucks at the time the goods were earmarked to<\/p>\n
them by the truck union while issuing the goods receipts. Three is nothing<\/p>\n
which prevented the assessee company from maximizing the exhaustion of<\/p>\n
its exemption limit to pay tax by 26.3.2007 provided there were genuine<\/p>\n
purchase orders and goods available for sale. The authorities, merely on<\/p>\n
account of delayed movement of goods, in the face of the explanation put<\/p>\n
forth by the assessee, and in the absence of any material on record, in our<\/p>\n
considered opinion, cannot draw the only irresistible inference that there<\/p>\n
was an attempt to evade payment of tax. The assessing authority has based<\/p>\n
its finding of attempt to evade tax simply on the basis of its presumption and<\/p>\n
suspicion. It is well settled that strong suspicion, strange coincidences and
\n VATAP No. 12 of 2009                                             9<\/span><\/p>\n
grave doubts cannot take place of legal proof to sustain a finding of fact<\/p>\n
(refer to (1978) 4 SCC 65 State of Kerala v. M.M. Mathhew). Therefore,<\/p>\n
the<\/a> delayed movement of goods by itself is not sufficient to conclude that<\/p>\n
there was an attempt to evade payment of tax or the bills\/sale invoices were<\/p>\n
ante dated. Hence, the findings recorded by the Tribunal\/authorities under<\/p>\n
the VAT Act are based on no evidence and are liable to be set aside.<\/p>\n
Accordingly, the re-phrased question of law no.(iii) is answered in favour of<\/p>\n
the appellant-assessee and against the revenue. In view of the fact that<\/p>\n
question of law no.(iii) has been answered in favour of the assessee, we do<\/p>\n
not consider it necessary to decide the remaining proposed questions of law.<\/p>\n
Accordingly, the appeal(s) are allowed and the impugned              order dated<\/p>\n
3.10.2008 (Annexure A\/8) passed by the Tribunal is set aside and the<\/p>\n
appellant-assessee is held entitled to the refund of amount of penalty<\/p>\n
deposited, if any.\n<\/p>\n
               A photocopy of this order be placed on the files of all the<\/p>\n
connected appeals.\n<\/p>\n<\/p>\n
                             (M.M.Kumar)              (Jaswant Singh)\n                                Judge                          Judge\n\n\n7.12.2009.\njoshi\n\n<\/pre>\n
1.   VATAP No.12 M\/s Vardhman Industries Ltd.v. State of Punjab and another\n<\/p>\n
2.   VATAP No.13 M\/s Vardhman Industries Ltd.v. State of Punjab and another\n<\/p>\n
3.   VATAP No.14 M\/s Vardhman Industries Ltd.v. State of Punjab and another\n<\/p>\n
4.   VATAP No.15 M\/s Vardhman Industries Ltd.v. State of Punjab and another\n<\/p>\n
5.   VATAP No.16 M\/s Vardhman Industries Ltd.v. State of Punjab and another\n<\/p>\n
6.   VATAP No.17 M\/s Vardhman Industries Ltd.v. State of Punjab and another\n<\/p>\n
7.   VATAP No.19 M\/s Vardhman Industries Ltd.v. State of Punjab and another\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court M\/S Vardhman Industries Ltd vs The State Of Punjab And Another on 7 December, 2009 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. VATAP No. 12 of 2009 Date of Decision: 7.12.2009. M\/s Vardhman Industries Ltd. ……….Appellant Versus The State of Punjab and Another ……….Respondents CORAM: HON’BLE MR.JUSTICE M.M.KUMAR HON’BLE […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-61293","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nM\/S Vardhman Industries Ltd vs The State Of Punjab And Another on 7 December, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ms-vardhman-industries-ltd-vs-the-state-of-punjab-and-another-on-7-december-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M\/S Vardhman Industries Ltd vs The State Of Punjab And Another on 7 December, 2009 - 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