Excise and Taxation Department, Punjab has made it mandatory to furnish information regarding intra-state movement of goods (within Punjab) by all persons making sales of Rs. 3 Lakh or above in a single transaction except in the case of Iron and Steel where this threshold shall be Rs. 2 Lakh instead of Rs. 3 Lakh and above.
This mandatory uploading of intra-state transaction has been made compulsory by merely a public notice.
The Public notice is as under:
” PUBLIC NOTICE
EXCISE AND TAXATION DEPARTMENT, PUNJAB
ATTN: TAXABLE PERSONS, ADVOCATES, CHARTERED ACCOUNTANTS AND COST ACCOUNTANTS
Section 51 of the Punjab VAT Act stipulates that every movement of goods shall be accompanied by documents as mentioned in sub-section 2 of this section. For the purpose of inter-state trade, information regarding such movement of goods is collected on the Information Collection Centres (ICC) set-up by the Department of Excise and Taxation, Punjab. To facilitate the furnishing of this information, the Department had introduced an e-Service namely “e-ICC” whereby the owner of goods can furnish this information from his premises.
It has now been decided that with effect from 10th August 2012, information regarding intra-state movement of goods (within Punjab) shall also be furnished by all persons making sales of Rs. 3 Lakh or above in a single transaction except in the case of Iron and Steel where this threshold shall be Rs. 2 Lakh instead of Rs. 3 Lakh and above.
This information shall be submitted by all sellers whose goods of the value prescribed above, are to move from one place to another place within Punjab, on “e-TRIP”, which is a virtual Information Collection Centre. This facility will not hinder the smooth transportation of goods as it does not involve any physical barrier. This service is called e-TRIP (Transportation Information within Punjab). All persons filing returns to the Department under the Punjab VAT Act can avail this service by using their username and password for e-filing. Persons not having username and password but covered under this direction should obtain their username and password from the AETC of their district.
e-TRIP is a facility through which the details of each movement of goods can be entered on the Department’s website i.e. www.pextax.com. This will result in the generation of an acknowledgement slip which shall accompany the goods during their movement. In case this acknowledgement slip does not accompany the goods, the owner shall become liable for penal action under section 51 of the Punjab VAT Act.
The details regarding forms, methodology and other related documents will be placed on Department’s website www.pextax.com. “
The public notice tends to suggest that if goods donot accompany an acknowledgement slip as generated after uploading of information about the intra-state sale of goods then penal action u/s 51 of Punjab VAT Act may be taken.
It is notable here that no amendment in section 51 of Punjab VAT Act, 2005 corresponding to the Public notice has been made. The said section till date no where prescribe any form or acknowledgement slip to be carried along with the goods when goods are sold within the State.
Section 51(2) of Punjab VAT Act, 2005 prescribes the documents and forms to be carried with the goods during the inter-state and intra state movement of goods.
Section 51(2) runs as under:
51 (2) The owner or person Incharge of a goods vehicle shall carry with him a goods vehicle record, goods receipt, a trip sheet or a log-book, as the case may be, and a sale invoice or bill or cash memo, or delivery challan containing such particulars, as may be prescribed, in respect of such goods meant for the purpose of business, as are being carried in the goods vehicle and produce a copy each of the aforesaid documents to an officer Incharge of a check post or information collection centre, or any other officer not below the rank of an Excise and Taxation Officer checking the vehicle at any place:
Provided that a person selling goods from within or outside the State in the course of inter-State trade or commerce, shall also furnish or cause to be furnished a declaration with such particulars, as may be prescribed:
Provided further that a taxable person, who sells or despatches any goods from within the State to a place outside the State or imports or brings any goods or otherwise receives goods from outside the State, shall furnish particulars of the goods in a specified form obtained from the designated officer, duly filled in and signed.
As is clear from above, section 51(2) requires only following documents to be carried with the goods whether it is inter-state or intra-state transaction:
1. Goods Vehicle record.
2.Goods receipt or a trip sheet or log book
3. sale invoice, a bill or cash memo or delivery challan.
However, in case of inter-state transaction first proviso provides for furnishing of a prescribed declaration which has been prescribed in form VAT-12.
Second proviso provides for furnishing of particulars of the goods in prescribed form which is called as Exim form in case of inter-state transactions. This prescribed Exim Form in form VAT-36 was introduced in the early days of introduction of PVAT Act, 2005. However the same was withdrawn and now the position is that VAT-36 is being generated at the ICC barrier by the authorities at the ICC or is also being generated by the dealers themselves voluntarily or mandatorily subject to certain conditions under E-ICC system of the Department.
Section 51 nowhere prescribes carrying of any acknowledgement slip as being requisitioned by the public notice referred above in case of intra-state sale of goods nor any such amendment has been made u/s 51.
If such acknowledgement slip for within state transaction was to be made mandatory it should have been done by an amendment to section 51 or by introduction of a relevant rule under Punjab VAT Rules, 2005.
The open questions now are:
1.whether requiring dealers to do something (which is no where mentioned in the Act or Rules) by a mere public notice amounts to exceeding the powers of subordinate legislation or for that matter is this public notice a valid one in the absense of corresponding provision in the Act or Rules?
2.If any penalty is being imposed for not carrying a document with the goods (when sold intra-state), which is not required under the Act or under the Rules anywhere but in a public notice only, whether such penalty would be upheld if the matter goes in appeal?
3. Whether such public notice ultra vires the provisions of Punjab VAT Act, 2005 in the absense of any such relevant corresponding provisions in the Act or the Rules thereof?
Whatever may be the plea of the Department, at prima facie one can say there should have been amendment in section 51 of Punjab VAT Act, 2005 or in relevant rules under Punjab VAT Rules, 2005 before the introduction of E-Trip.