The Hon’ble High Court of Calcutta vide its order dated 30.03.2023 in the matter of Usha Gupta Vs. The Assistant Commissioner of Revenue, Bureau of Investigation, North Bengal, Siliguri Headquarters & Ors. in MAT – 477 of 2023 with I. A. No. CAN 1 of 2023, found that the Authorities could not have imposed 200% penalty on the entire consignment for shortage in quantity of goods and thus, set aside the order passed by the Appellate Authority imposing penalty of 200% on the entire consignment.  The matter was remitted back to recalculate the penalty in respect of shortage of quantity in goods, and the penalty already remitted by the Appellant, was directed to be refunded to the Appellant.

The Appellant filed the intra-court appeal before the Hon’ble High Court challenging the order dated 1st March, 2023 passed in WPA 3512 of 2023 by which the learned Single Bench was declined to grant any interim order.

Held: –

• The Hon’ble Court after considering the submissions made and facts of the case, took up the writ petition as well as the appeal for hearing to be decided.
• On consideration of the submissions from the both sides, it was found by the Hon’ble Court that the case arose out of a detention of two consignments, which have been transported by the appellant for being exported to Bhutan. The detention of the goods was on the ground that the quantity of the boxes was lesser than the quantity shown in the document.
• The Second reason for detention was IGST was not charged. Further, the third issue was with respect to alleged discrepancy in the export invoice and the purchase order.
• It was noticed by the Hon’ble Court that with respect to issue relating to non-mention of charging IGST, the appellate authority granted relief in favour of the appellant assessee. So far as the alleged discrepancy is concerned, copy of the sales order which shows the sales order number as SG/2022-23/004 dated 23rd April, 2022, was produced on the behalf of the Appellant.
• It was found by the Hon’ble Court that the purchase order placed by the purchaser from Bhutan shows the sales order number correctly and in the said purchase order license number of the purchase has been given as SAB84282. In the export invoice, which was generated by the appellant, buyer’s license number has been shows as buyer’s order number. This cannot be treated as a discrepancy because in the purchase order of the buyer the sales order number has been correctly shown as SG/2022-23/004. It was therefore, found by the Hon’ble Court that the authorities could not have imposed 200% penalty on the entire consignment.
• With respect to third issue ‘shortage in quantity of goods’, it was submitted on the behalf of the appellant that at the time of detention, the appellant expressed his willingness to pay penalty for the shortage of quantity of the goods. However, the authority while passing the penalty order has imposed penalty on the entire consignment which includes the amount of cess paid by the appellant.

The Hon’ble Court with the above observations and findings, disposed of the appeal by setting aside the order passed by Appellate Authority for imposing penalty on the whole consignment and remanded the matter back to the appellate authority to recalculate the penalty in respect of shortage in quantity of goods and over than quantity penalty shall be levied at 200%.  It was also directed to refund the amount of penalty already paid by the Appellant.