TMI Blog2017 (4) TMI 831X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner, VAT uploaded upholding on the Petitioner’s Web ID proposing the invocation of the powers under Section 74A of the DVAT Act to revise the order dated 14th October 2016 of the OHA VAT commissioner directed to ensure that the refund due to the Petitioner in relation to the monthly returns filed in July 2010 together with the interest accrued thereon is disbursed/paid into the account of the Petitioner not later than 8th May 2017. - petition allowed. - WP (C) 2282/2017 - - - Dated:- 12-4-2017 - S. MURALIDHAR NAJMI WAZIRI JJ. Petitioner Through: Mr. Ruchir Bhatia, Advocate. Respondent Through: Mr. Peeyoosh Kalra, Advocate. O R D E R 1. This writ petition by the Petitioner, Garg Roadlines, an authorized agent of Bharat Petroleum Corporation Limited ( BPCL ), and registered with the Department of Trade and Taxes ( DT T ) challenges the undated and unsigned notice No. F.CD:105350157/Ward 63 posted at the Web ID of the Petitioner for revision under Section 74 (A) of the orders of the learned Special Commissioner-II/OHA requiring the Petitioner to appear before the Respondent, Commissioner, Trade Taxes on 28th February 2017 at 11.30 am. 2. Backgro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usal of the contents of the letter of the Territorial Manager, BPCL it seemed that he has not categorically denied the specific query of learned AA who sought clarification that whether the dealer is allowed to make inter-state sale, i.e., to register dealer of other states Haryana, Punjab, Himachal Pradesh etc. It is just responded that the dealer is authorized to sale MS/HSD to all customers coming to RO premises for purchase of the same through Nozzle. I am of the view that the learned AA is failed to take up the issue further with the authorities of BPCL to clarify the ambiguity on the issue in question as the same was not clarified specifically from BPCL. With regard to this, the learned counsel for the Objector has raised a valid point that it is nowhere mentioned in the letter that the Objector cannot make inter-state sale. The Objector can make sale only through Nozzle which condition the Objector legitimately fulfilled as all sales effected from the RO premises through the Nozzle. It is irrelevant to question whether the objector can make interstate sale or in absence of any prohibition by law. 9. Further, during hearing the case, it is established that the object ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eral judgments, this Court has explained the law in relation to refund under the DVAT Act. Illustratively the decisions in Ingram Micro India Pvt Ltd v. Commissioner, Department of Trade Taxes (2016) 89 VST 312 (Del), Prima Papers Packers v. Commissioner of VAT (2016) 94 VST 347, Swarn Darshan Impex (P) Limited v. Commissioner, Value Added Tax (2010) 31 VST 475 (Del) and Vizien Organics v. Commissioner, Trade Taxes [decision dated 19th January 2017 in W.P. (Civil) 10701 of 2016] may be referred to. The legal position has been clarified by the Commissioner, DVAT in Circular No. 6 dated 15th June 2005, the relevant extract of which reads as under: The ward VATO s shall scrutinize the correctness of the amount of the cash refund claimed and shall pass the refund order in DVAT-22 within a period of 15 days from the date of receipt of the return in the Front Office without fail, unless the return of the dealer has been picked for seeking additional information or audit and in such cases, intimation shall be given by the Audit Wing of the Department/the designated VAT authority of the wing/VATO concerned in Audit wing to the concerned VATO in the Operation Wing within 10 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. Purpose for which the items are being purchased by the purchasing dealer. 2. Nature of business of the purchasing orders. 3. If purchasing dealer is manufacturer, list of items manufactured or items dealt by him. 8. The present petition was thereafter filed on 7th March 2017 and came up for first hearing on 10th March 2017. The Court directed by its order dated 10th March 2017 that on the next date of hearing, all original documents pertaining to the impugned notice along with relevant documents shall be produced in Court. It was further directed that no further proceedings shall be conducted in relation to the impugned notice (Annexure P-1) till the next date of hearing. 9. Meanwhile, on 22nd March 2017 Writ Petition (Civil) No. 1541 of 2017 was heard. The Court passed the following order in which it took note of the fact of the pendency of the present writ petition: The Petitioner has claimed a refund of ₹ 4,06,24,323 along with interest towards excess VAT amount paid by it for various periods. The Respondents were directed on 20th February 2017 to process the Petitioner s application and make necessary orders; they were also directed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the retail outlet premises for purchase of the same through nozzle . It is then stated that the Petitioner had failed to produce any other documents/written permission issued by BPCL permitting it to make interstate sale of MS/HSD. Accordingly, the Assessing Authority ( AA ) had by its order dated 18th January 2016 rejected the interstate sale shown and treated it as local sale and taxed it accordingly. According to DT T, the sale of the product has to be from the nozzle installed at the petrol pump and therefore, the Petitioner was authorized to conduct only 'business to consumers' sale and not 'business to business' sale. Since there was no movement of goods from one State to another, to bring it within the ambit of inter-state sale as contemplated by Section 3 of the Central Sales Tax Act, 1956 ('CST Act ), the VATO decided to treat such inter-state sales as local sales. 11. The Respondent however acknowledges that the OHA by the order dated 14th October 2016 has set aside the above default assessment order. No attempt has been made by the Respondent to point out what it found objectionable in the order of the OHA that warranted the exercise of revisiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finding of the OHA and in particular finding that nowhere in the letter of the Manager, BPCL it is mentioned that the Objector cannot make inter-state sale. Following this, it its noted: In the absence of categorical clarification by the BPCL whether inter-state sales can be made by the dealer and also the fact that petrol pumps are licensed to make retail sale from their outlets, it is not very clear whether sales of this nature can be effected by the said dealer. It is also likely to give rise to tax loss to the exporting state. It is, therefore, requested that Commissioner (VAT) may invoke the provisions of Revision under Section 74A of the DVAT Act, 2004 for revision of the impugned order of OHA. 14. The above note of the Joint Commissioner is shown as having been placed before the Commissioner, VAT. However, but there is no signature or endorsement of the Commissioner, VAT acknowledging that he has seen and has agreed with the note. In other words, there is nothing to indicate that the Commissioner, VAT took a conscious decision that the revisionary power under Section 74A should be invoked. What the notings portion of the file next contains are the order sheets in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercise of the revisionary jurisdiction was at best vague. It did not satisfy the basic requirement of the law, as explained in Commissioner of Central Excise, Bangalore v. Brindavan Beverages (P) Limited 2007 (213) ELT 487 (SC), viz., that the grounds should be clearly specified. In other words, if the allegations in the show cause notice are not specific and are on the contrary vague, lack details and/or unintelligible that is sufficient to hold that the noticee was not given proper opportunity to meet the allegations indicated in the show cause notice. 18. Why this exercise was sought to be undertaken at a stage when the refund was overdue, is not even adverted to. It appears to the Court that apart from the fact that there was a total non-application of mind to the facts of the case, there is sufficient indication from the notes on files that the invocation of the revisionary powers under Section 74A of the DVAT Act was to delay making the refund which was overdue for over six years. The Court is left no manner of doubt is that this was plainly an abuse of power vested in the Commissioner which calls for disapproval in strongest terms. 19. The Court accordingly set ..... X X X X Extracts X X X X X X X X Extracts X X X X
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