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TMI Blog1990 (3) TMI 325X X X X Extracts X X X X X X X X Extracts X X X X ..... rate mentioned in section 5(1)(bb) of the said Act, if the same are purchased by the applicant for use directly in the manufacture and sale of goods in West Bengal. The registration certificate was granted on December 19, 1973. Up to March 31, 1980, the rate of tax payable under section 5(1)(bb) was 3 per cent upon furnishing declaration form for purchases made for manufacture of any goods whether taxable or tax-free. With effect from April 1, 1980, the relevant provision was amended to the effect that declaration forms could be furnished in respect of purchases made for manufacture of only taxable goods. The purchases made for manufacture of tax-free goods were excluded from the benefit of the provision of section 5(1)(bb). Hooka tobacco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice. There is no dispute that out of three conditions under section 5B, two are fulfilled in this case, namely, the applicant is a registered dealer and declaration forms had been issued to it under section 5(1)(bb). What is disputed by the applicant is that the third condition laid down in section 5B is not satisfied in its case. It is that the applicant must have furnished a declaration under section 5(1)(bb) in respect of a sale to him of goods of any class or classes not specified at the time of sale in the certificate of registration granted to him under section 7(3). It is urged by Mr. Gopal Chakraborty learned Advocate, appearing for the applicant, that the registration certificate has, at all material times, contained an endorsem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended law, yet the applicant ought not to have taken the benefit of the unamended endorsement in the registration certificate. He further submitted that in clause (a) of section 5B(1) the words "in accordance with law" should be read so as to give the true meaning to the provision. In other words, he submitted that the mere fact of an endorsement in the registration certificate cannot permit the applicant to enjoy the benefit, until such endorsement is in conformity with the law prevailing at the time. He also submitted that even if an officer of the State Government committed any mistake or was in collusion in issuing declaration forms by ignoring the amended provisions of the law, the Revenue cannot be estopped from enforcing the legal pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n we hold that the fact of existing endorsement in the registration certificate can be explained away by the enjoyment of the benefit by the applicant contrary to the amended provisions of law. We are deciding the question of imposition of penalty and not any question of recovery of any tax which has not been paid or collected on account of any mistake or collusion. 5.. The learned State Representative has referred to the decisions reported in [1979] 43 STC 58 (P&H) (Bhim Sain Sudarshan Kumar v. State) and [1965] 16 STC 271 (Orissa) (Nowranglal Agarwala v. State of Orissa), both of which in our opinion, do not apply to the facts and circumstances and the real issue involved in the present case. On the contrary, Mr. Gopal Chakraborty, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act in which the circumstances under which the applicant would have an obligation to get the registration certificate corrected on furnishing certain information, are laid down. The provisions of section 16 do not require the applicant to get such an endorsement, as in the present case, to be modified or corrected upon furnishing any information. 6.. It is true, as argued by Mr. P.K. Chakraborty, the learned State Representative, that the applicant then has enjoyed an unlawful benefit but, in any case, it cannot be proceeded against under section 5B; yet that cannot be helped, more so because section 5B is regarding imposition of penalty which after all takes at least a partial character of a punishment. In such a case, unless all the ing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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