9911796707
TMI Blog2008 (1) TMI 860X X X X Extracts X X X X X X X X Extracts X X X X ..... ed August 24, 2007 of STO/KP Range imposing penalty of Rs. 1,77,600. The revisional order dated September 6, 2007 passed by the Assistant Commissioner of Commercial Taxes, Kharagpur Range (in short, ACCT/KP Range ) confirming imposition of penalty as mentioned hereinabove has also been challenged. It appears from the petition itself that the petitioner deals in hosiery yarn of various nature which includes polyester hosiery yarn spun for filament and is registered under the West Bengal Value Added Tax Act, 2003 (in short, the VAT Act, 2003 ). The petitioner was importing 148 cartons of polyester filament yarn from Sangi Polyester Limited, Sanginagar, Andhra Pradesh. Upon interception, all related documents were produced before STO/KP R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed into West Bengal under the bona fide belief that no way-bill was required for the purpose. She also drew our attention to a decision of this Tribunal in RN-256 of 2007 in respect of the present petitioner in Swastik Trading Corporation v. STO [2010] 28 VST 233 (WBTT). In that case, the petitioner was importing 201 boxes of polyester yarn for the purpose of selling those yarns to the manufacturer of hosiery goods. After taking into consideration the relevant facts, the Tribunal by its order dated August 7, 2007 set aside the order of seizure and accordingly in this case too the order as well as the imposition of penalty cannot be sustained on that ground. The learned advocate also drew our attention to an order dated December 13, 2005 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-rule (2) of rule 26A of the VAT Rules, a selling dealer claiming deduction under clause (c) of sub-section (1) of section 6 in respect of the turnover of cotton yarn to arrive at his turnover of sales is required to produce on demand by the appropriate authority relevant tax invoice or cash memo evidencing such sales and a certificate in the form appended to rule 26A of the VAT Rules duly filled in and signed by the purchasing dealer by a person authorised by such purchasing dealer for this purpose. It was, therefore, contended that there is no blanket exemption in respect of hosiery yarn. It was his argument that yarn when sold to a hosiery unit for the purpose of manufacturing hosiery goods will merit exemption. A sample of the item ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er argued that it is not possible for an officer working in the check-post to ascertain well in advance as to how the yarn would be used. We have heard both the sides and perused all relevant records and documents as were produced before us during the course of hearing. There is no denying of the fact that polyester filament yarn which was being imported by the petitioner could be used both for the purpose of manufacturing hosiery goods and other goods. It is also admitted that it is not possible for the officers working in the check-post to determine before hand as to how the goods will be used. Similarly, it is true for the importer because the importer can only know the use of these goods at the time of sale whether to a reseller or a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer cannot ignore express provisions of law and proceed to pass final order of seizure merely on surmise and conjecture. For the reasons aforesaid, the impugned final order of seizure appears to be unsustainable and we set aside the said order of seizure. However, the officers of the Siliguri Range may take precautionary steps to ensure that these imported goods are actually sold to hosiery manufacturers. We also like to direct the petitioner that it will inform the concerned charge office in which the petitioner's place of business is situated, before selling this particular consignment and to show that these imported polyester yarns are actually sold to hosiery manufacturers. However, if it is ultimately found that the disputed impo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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