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TMI Blog2010 (11) TMI 873X X X X Extracts X X X X X X X X Extracts X X X X ..... who slightly modified the order of penalty passed only on the point of quantum thereof. In second revision before the Additional Commissioner of Commercial Taxes the first revisional order was further modified as to the value determined but the rate of penalty was confirmed by an order dated September 15, 2009 and being aggrieved the present application under section 8 of the West Bengal Taxation Tribunal Act, 1987 has been filed challenging the legality and validity of the order of penalty disputing only the rate of the penalty imposed and accordingly the quantum thereof on the grounds stated therein. It is contended in the application and submitted by Mr. D. Gangopadhyay that here in this case the petitioner has challenged not the legality and validity of the seizure of the goods and/or the order of imposition of penalty in toto but the rate of tax exigible to the seized goods and the rate at which the quantum of penalty imposed thereon. It is further contended and submitted that the respondents all along have wrongly treated the seized goods as not the machinery and taxable at four per cent but a different commercial article being not covered in item Nos. (i) to (xxvii) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from that of the items mentioned in the serial No. 54B and hence has rightly imposed penalty at 50 per cent of the assessed/determined value being the goods taxable at 12.5 per cent. Mr. Majumdar, therefore, prays for dismissal of the application and for that he has submitted written notes to substantiate the contentions of the respondents. It will be worth noted here that in support of the contention of the petitioner-company Mr. Gangopadhyay, learned advocate for the petitioner, has also filed written reply to the notes filed by Mr. Majumdar and has referred the decisions of the honourable Supreme Court, High Court of Andhra Pradesh and also of this Tribunal passed before. We have gone through the contents of the application and the documents annexed thereto. We have scrutinized the impugned orders (annexure B), i.e., the order dated April 18, 2008, passed by the Assistant Commissioner of Commercial Taxes, Bureau of Investigation (respondent No. 3), imposing penalty on the goods seized, the rate of which has been challenged in the application, and also the annexures C and D, i.e., the first revisional order dated October 20, 2008 passed by the Deputy Commissioner of Commercial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provision of section 73 of the Act and thus it warranted imposition of the penalty under section 77 of that Act and on consideration of the relevant documents the value of the seized goods were determined at Rs. 24,34,610 and on consideration of the nature of the goods as survey equipments and spare parts of survey equipments, the goods were found to fall under Schedule CA of the VAT Act and exigible to tax at 12.5 per cent and as per provision of section 77(1)(b) penalty at 50 per cent was imposed thereon amounting to Rs. 12,17,305. It also appears from the first revisional order under annexure C that respondent No. 2 also examined/considered the nature of the seized goods and the submissions made for the petitioner thereon and it was observed that the seized goods neither included in serial No. 54B nor in entry No. 83(c) of Part I of Schedule C to the VAT Act to be treated as exigible to tax at four per cent under section 16(2)(b) of the Act rather exigible to tax at 12.5 per cent as per Schedule CA of the VAT Act and therefore imposition of penalty at 50 per cent on the value of the seized goods is valid and for that respondent No. 2 found no wrong with the order of respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... written submissions filed before this Tribunal have said that the seized goods is not plant at all. On the contrary, it is submitted by Mr. Gangopadhyay that honourable judiciary has, however, distinguished between plant and machinery and the honourable apex court has held that when there is no definition of plant in any Act the word plant will include whatever apparatus is used by a businessman for carrying on his business. It is also held that plant includes any article or object moveable or fixed used by the purchasing businessman/dealer for carrying on his business. Mr. Gangopadhyay further submits that though plant does not necessarily mean an apparatus used for mechanical operations but it covers a wide range of meaning to mean even drawing, designs, charts, plans when those play a vital role in the business of manufacturing of instruments. It is also submitted that to be a plant some degree of durability also must be there. According to the decision of the honourable apex court the test for determining whether any goods purchased by a dealer/businessman is plant, if the article is a tool of his trade with which he carries on business, then it can be said as plant for his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .e., the petitioner, are used by them in carrying on their business which are regarded as a very important and essential tool and as such plant of their business and those are durable also. On consideration it appears from the decision of Scientific Engineering House (P) Ltd. v. Commissioner of Income-tax, Andhra Pradesh [1986] 157 ITR 86 (SC); AIR 1986 SC 338 that the test to determine what is a plant would be does the article fulfil the function of a plant in the trading activity? Is it a tool of trading with which the business is carried out? And if the answer is in affirmative it will be a plant. If this test is applied to the drawings, designs, charts, plants, processing data and other literature those documents also fall within the definition of plant . It will be pertinent here to mention that in section 43(3) of the Incometax Act, plant has been regarded to be construed in the popular sense. The word plant is to be given a very wide meaning. In its ordinary sense it includes whatever apparatus is used by a businessman for carrying on his business. The thing need not be part of the machines used in the manufacturing process and could not be merely an apparatus used i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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