2007 (10) TMI 578 - HC - VAT and Sales Tax

Auction sale - Penal charges and demurrage charges - Held that - On a reading of the condition it is clear that on payment of the entire amount by the successful bidder and on handing over of the goods to the purchaser if the purchaser failed to take delivery within the voidah date the woods would have to be kept in double or single lock as the case may be until such time as agreed to take delivery thereof and the purchaser shall be liable to pay a demurrage of Rs. 30 per tonne per day for each day the wood kept in double or single lock beyond 75 days from the date of confirmation. In this case except the payment of earnest money deposit and 20 per cent of the bid amount the other amounts are yet to be paid and are in dispute. Even the other amounts paid pursuant to the direction issued by this court by way of demand drafts have been returned to the petitioner.The goods were neither handed over to the petitioner nor kept in double or single lock by the respondents. Hence there is no question of demurrage.So also the demand made for penalty is not tenable. In this case the High Court directed the respondent to release the goods on obtaining the bank guarantee for the disputed amount but in spite of the bank guarantee being furnished the goods were not released and as a matter of fact a contempt petition has also been filed against the respondent. Hence on this point also we are of the view that the respondent is not legally entitled to claim penal charges and demurrage charges. For the foregoing reasons the writ appeals are dismissed confirming the order made in the respective writ petitions. The conditions imposed by the learned single judge shall be followed by either of the parties. The time for furnishing bank guarantee and payment as directed in condition No. 3 in the impugned order stands extended by one month from the date of communication of this order. The connected miscellaneous petitions are consequently dismissed.

Issues Involved:
1. Entitlement to exemption from payment of sales tax under section 5(3) of the Central Sales Tax Act, 1956.
2. Legality of the demand for penal interest and demurrage charges.
3. Validity of the forfeiture of the amount already paid by the petitioner.
4. Applicability of the contractual obligations and conditions of the sale notice.
5. Compliance with the directions of the learned single judge and the Division Bench.

Detailed Analysis:

1. Entitlement to Exemption from Payment of Sales Tax:
The petitioner claimed exemption from paying sales tax under section 5(3) of the Central Sales Tax Act, 1956, asserting that the purchase was made for export pursuant to a prior export order. The court noted that the entitlement to exemption is a factual question requiring evidence and should be considered by the Commercial Taxes Department at the time of assessment. The forest department cannot resolve this issue. The Special Commissioner and the Commissioner of Commercial Taxes had issued guidelines allowing the forest department to accept a bank guarantee from successful bidders claiming exemption under section 5(3), pending verification of export documents.

2. Legality of the Demand for Penal Interest and Demurrage Charges:
The court found that the demand for penal interest and demurrage charges was unjustified because the goods had not been handed over to the petitioner. According to the sale conditions, demurrage is applicable only if the purchaser fails to take delivery after paying the entire amount. Since the petitioner had not paid the full amount due to the ongoing dispute and the demand drafts were returned by the respondent, the goods were neither handed over nor kept in double or single lock by the respondents. The court referenced a Division Bench judgment and a Supreme Court decision which held that the respondent could not impose demurrage or penalty charges due to the delay caused by the respondent's unreasonable stand.

3. Validity of the Forfeiture of the Amount Already Paid:
The learned single judge quashed the direction regarding forfeiture of the amount already paid by the petitioner. The court upheld this decision, noting that the petitioner had complied with the auction conditions by paying the earnest money deposit and 20% of the bid amount. The forfeiture was deemed unjustified given the ongoing dispute over sales tax exemption and the respondent's failure to release the goods despite the court's directions.

4. Applicability of the Contractual Obligations and Conditions of the Sale Notice:
The respondent argued that the petitioner, having participated in the auction and accepted the conditions, could not maintain a writ petition to wriggle out of contractual obligations. However, the court rejected this argument, citing a Division Bench judgment which held that statutory benefits under section 5(3) of the Central Sales Tax Act could not be circumvented by contract terms. The court emphasized that no contract can override statutory benefits or be contrary to public policy.

5. Compliance with Directions of the Learned Single Judge and the Division Bench:
The court noted that the learned single judge had followed the Division Bench's precedent in granting relief to the petitioner. The conditions imposed by the single judge included furnishing a bank guarantee for the disputed sales tax amount, making payments as indicated in the confirmation letter (excluding sales tax), and establishing entitlement to sales tax exemption within five months. The respondent was directed to deliver the goods without claiming demurrage or penalty if these conditions were met. The court extended the time for furnishing the bank guarantee and making payments by one month from the date of communication of its order.

Conclusion:
The writ appeals were dismissed, and the order of the learned single judge was confirmed. The court directed compliance with the conditions imposed by the single judge and extended the time for furnishing the bank guarantee and making payments. The respondent's contentions regarding the unavailability of goods for delivery and the imposition of penal and demurrage charges were rejected. The court emphasized the statutory entitlement to sales tax exemption and the need for compliance with judicial directions.

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