9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2009 (1) TMI 814 - AT - VAT and Sales TaxIssuance of way-bills stayed - Whether the goods were transported into the site of West Bengal on account of the customer and not on the petitioner s account and the application for issuance of way-bills should be made under rule 111 of the West Bengal Value Added Tax Rules, 2005 by the customer and not by the petitioner under rule 110 of the said Rules? Held that - On cumulative consideration of the facts of the case it is held that the petitioner-company as a consignee is eligible to issue way bills for the goods brought from outside West Bengal including the goods sent by the Otis, Mumbai. But the petitioner-company is liable to account for the goods so brought for installation of the lift/ elevator in West Bengal. If the petitioner-company fails to account for the goods so brought/imported, the authority concerned may proceed to take action against the petitioner as per the provisions of law. In this case the question whether Otis, Mumbai or Otis, Kolkata will pay the works contract tax was not raised and argued by either of the parties though it is admitted by the petitioner that Otis, Mumbai despatched 94 per cent of the materials to Otis, Kolkata and Otis, Kolkata procured balance six per cent of the materials. Appeal allowed.
Issues Involved:
1. Validity of the order dated May 28, 2007, by the Assistant Commissioner, Sales Tax, Corporate Division. 2. Entitlement of the petitioner to obtain way-bills under the West Bengal VAT Rules, 2005. 3. Interpretation of the term "on his own account" in Rule 110 of the West Bengal VAT Rules, 2005. 4. Determination of whether the transaction is an inter-State sale or a local sale. Issue-wise Detailed Analysis: 1. Validity of the Order Dated May 28, 2007: The petitioner challenged the order dated May 28, 2007, which restricted the issuance of way-bills, arguing that the goods were transported on account of the customer and not the petitioner. The Tribunal found that the Assistant Commissioner's order was based on an erroneous assumption that the goods were transported by the customer, whereas the petitioner was responsible for the transportation and installation of the lifts/elevators. 2. Entitlement to Obtain Way-Bills: The petitioner argued that the goods were consigned in its own name for the execution of works contracts and that the consignee was the petitioner itself. The Tribunal held that the petitioner, as a registered dealer, is entitled to obtain way-bills for bringing goods into West Bengal for the purpose of executing works contracts. The Tribunal referenced previous decisions, including Gontermann Pipers (India) Pvt. Ltd. (RN-295 of 2005), which supported the petitioner's entitlement to way-bills. 3. Interpretation of "On His Own Account": The petitioner contended that the term "on his own account" should be interpreted to mean that the petitioner is responsible for the goods until the completion of the works contract. The State Representative argued that the goods were transported on account of the customer. The Tribunal concluded that the term "on his own account" should be interpreted in a broader sense, meaning the petitioner is responsible for the goods until they are handed over to the customer after installation and commissioning. 4. Determination of Inter-State Sale: The petitioner argued that the transaction was an inter-State sale since the goods were transported from Mumbai and Karnataka to West Bengal, and the property in the goods passed to the customer only after installation. The Tribunal agreed, citing the Supreme Court decision in State of Andhra Pradesh v. National Thermal Power Corporation Ltd. [2002] 127 STC 280, which held that the situs of the sale is immaterial in inter-State transactions. The Tribunal concluded that the movement of goods from one State to another for the execution of a works contract is deemed to be an inter-State sale. Conclusion: The Tribunal allowed the application, setting aside the order dated May 28, 2007, and held that the petitioner is entitled to obtain way-bills for the goods brought into West Bengal for the execution of works contracts. The Tribunal emphasized that the petitioner must account for the goods brought into West Bengal and that failure to do so could result in legal action. The Tribunal refrained from opining on the issue of works contract tax payment as it was not raised by either party. The application was allowed without any order as to costs.
|
