Akil Kureshi, J.
1. Petitioner has challenged an order dated 20.10.2016 passed by the Value Added Tax Tribunal ('the Tribunal' for short) confirming a revisional order dated 22.04.2015 passed by the revisional authority.
2. Brief facts are as under.
3. Petitioner is a company registered under the Companies Act and is engaged in the manufacture and sale of asbestos cement products and also deals in import and resale of raw asbestos fiber. The petitioner imported raw fiber asbestos from Hongkong which arrived at Mundra port. The goods were cleared on or around 20.08.2010. According to the petitioner, such goods were in transit for interstate sale when on 20.11.2011, the same were intercepted by the checkpost authorities at Shyamakhyali, Kachchh. The said authorities would not release the goods unless the petitioner deposited the entire duty with penalty at the rate of 150% thereon. The petitioner under compulsion, was made to deposit a sum of Rs.10,24,256/- which comprised of the duty and penalty at the rate of 150% of the basic duty. The authorities passed an order dated 26.11.2010, in which, it was recorded that upon deposit of Rs.4,09,702/- of duty and Rs.6,14,554/- by way of penalty i.e. total of Rs.10,24,256/-, the vehicle with the goods would be released. Eventually, upon the petitioner depositing such sum, the goods were actually released under an order dated 04.12.2010. This order recorded that the vehicle carrying the goods was detained on 20.11.2010 and since a sum of Rs.10,24,256/- by way of duty plus penalty has been paid up by the petitioner in terms of section 68 of the Value Added Tax Act, as per the telephonic instructions received on 04.12.2010, the goods were released.
4. The petitioner preferred appeal against the order dated 26.11.2010. The Appellate Authority by an order dated 10.03.2011 set aside the levying of penalty but did not disturb the demand of duty. The petitioner after corresponding with the department for refund of the penalty and having failed in the attempt, approached this Court seeking direction to the department to refund the penalty.
5. In the meantime, the revisional authority issued a notice dated 23.08.2013 seeking to take the order of appellate authority dated 10.03.2011 in revision. In this notice, two grounds were cited. One was that, the appeal was filed against the order dated 26.11.2010 which was not an order of assessment levying penalty and duty and no appeal against the order dated 04.12.2010 was preferred which was appealable. Second ground was that there was clear provision for collecting duty and the petitioner having evaded such duty, demanding penalty was legal. The order of appellate authority deleting penalty was therefore not correct.
6. After hearing the petitioner, the revisional authority passed an order dated 23.04.2015, in which, she set aside the appellate order only on the ground that the communication dated 26.11.2010 was not an appealable order. If at all the petitioner was aggrieved by the action of the departmental authorities, he should have preferred appeal against the order dated 04.12.2010.
7. Against such order of revisional authority, the petitioner approached the Tribunal. The Tribunal by the impugned order confirmed the decision of the revisional authority. Hence, this petition.
8. Having heard learned counsel for the parties and having perused the documents on record, we are in agreement with the contention of Shri Uchit Sheth for the petitioner that the communication dated 04.12.2010 cannot be categorized as an order and at any rate, it was not an order of assessment. If therefore, the communication dated 26.11.2010 is treated as not an appealable order, there was no order passed by competent authority levying duty or penalty. In that view of the matter, the department would have no authority to collect such duty and penalty. The communication dated 04.12.2010 merely recorded that the vehicle with the goods was detained and the petitioner had paid up a sum of Rs.10,24,256/- by way of duty and penalty in terms of section 68 of the VAT Act. On account of this, as per telephonic instructions from the Deputy Commissioner of Commercial Tax, the vehicle was released. This communication under no circumstances can be treated as an order of assessment. Without order of assessment, the demand of duty or penalty could not have been finalized. There was no consideration of the ground for levying duty or for imposing penalty at a particular rate. As is well known, the VAT Act prescribes penalty which may go upto one and a half times basic duty. The law thus, prescribes the ceiling for imposing penalty. There is no reason why maximum penalty was imposed. In fact, the communication records that the goods were being released under a telephonic communication from the higher authority. This communication lacks all characteristics of quasijudicial order of an assessment.
9. If at all, it was the communication dated 26.11.2010, in which, the duty and penalty were assessed which could be treated as an appealable order. If the department holds a belief that this was not an order of assessment at all, the respondents had no authority to retain the said sum of Rs.10,24,256/- deposited by the petitioner under compulsion in the guise of finalized duty and liability of the petitioner.
10. We may recall, in the notice for revision, the revisional authority raised two grounds. One was of the maintainability of the appeal and the other was on the merits of the appellate order. The revisional authority having held that the appeal itself was not maintainable, refused to elaborate on the merit of the order. When we are of the opinion that the appeal was maintainable and that the revisional authority therefore committed an error in reversing the appellate order on the ground of maintainability, we must restore the proceedings before the revisional authority for decision on merits. For such purpose, the revisional order shall have to be set aside. For the same reason the order passed by the Tribunal confirming the revisional
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order shall also go. 11. In the result, the petition is allowed in part. Orders dated 22.04.2015 passed by the revisional authority and 20.10.2016 passed by the VAT Tribunal are set aside. The proceedings are restored before the revisional authority. The communication dated 26.11.2010 shall be treated as an appealable order assessing the duty and penalty liability of the petitioner. The revisional authority shall dispose of the revision on merits. All contentions of both sides on question of leviability of the duty and penalty are kept open. Since the issue is an old one, the revisional authority may decide the same, latest by 31.10.2017. Petition is disposed of.