Patna High Court
Sailesh Kumar Tripathi For M/S Darcl … vs The State Of Bihar on 13 March, 2026
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.407 of 2021
======================================================
Sailesh Kumar Tripathi for M/s DARCL Logistics Ltd., Gate Number 01,
Transport Nagar, P.S. Agamkuan, District- Patna- 800026 through its
authorised signatory namely Satyendra Yadav male aged about 41 years Son
of Late Motilal, Resident of Rampur Atouly, Rampur Atauli, District- Saran,
Rampur Atauli, Bihar- 841421.
... ... Appellant/s
Versus
1. The State of Bihar through the Principal Secretary cum Commissioner,
Department of State Taxes, New Secretariat, Bailey Road, Patna.
2. The Principal Secretary cum Commissioner, Department of State Taxes,
New Secretariat, Bailey Road, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Maruth Nath Roy, Adv
For the Respondent/s : Mr. Vikash Kumar, SC-11
: Mr. Ravish Chaudhary, AC to SC 11
======================================================
CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
and
HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA)
Date : 19-03-2026
The present miscellaneous appeal placed on our
board against the order of Commercial Tribunal, Patna Bihar
dated 21.01.2019, wherein learned tribunal confirmed the order
as passed by first appellate authority and also the order of Joint
Commissioner, Commercial Tax, Purnea imposing a penalty of
Rs. 7,51,430/- against the appellant under Bihar Value Added
Tax Act, 2005 (in short BVAT Act, 2005).
2. The brief case of the appellant speaks that a
truck bearing registration no. AP-03-X-0914 carrying
consignment of batteries was intercepted by the officers of
State/Respondent (Commercial Tax Department) at Dalkola
integrated check post in the district of Purnea, Bihar on
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19.02.2016
. The Department seized the truck along with stock
recorded in the order as per order sheet dated 20.02.2016 of the
assessment year 2015-16 showing that though truck driver
produced bill, invoice, challan and required license related
goods under carriage, but no permit in terms of Section 60(2) of
BVAT Act, 2005 was produced on demand and, therefore, a
proceeding in terms of 60(4)(a) of BVAT Act, 2005 read with
Section 56(4)(b) of BVAT Act, 2005 was initiated. In pursuant
thereof a show cause notice was issued to the driver of the truck,
explaining non-production of required permit in terms of
Section 60(2) of the BVAT Act, 2005. The transport company
was requested to be represented by one Shailesh Kumar Tripathi
(appellant) upon request of the driver of the seized truck, which
was accorded by the respondent authority.
3. Considering the explanation, vide order dated
01.03.2016 observing thereto as no satisfactory explanation was
offered by the representative of the company, therefore, for the
violations of aforesaid provisions of BVAT Act, 2005 a penalty
of Rs. 7,51,430/- was imposed upon appellant. Consequent upon
a demand notice no. 2269 dated 01.03.2016 under Section 25
read with Section 39 of the BVAT Act, 2005 was issued.
4. Appellant being aggrieved with aforesaid order
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passed by the Commercial Tax Officer preferred appeal before
Joint Commissioner of Commercial Tax, Purnea Division vide
appeal case no. PN/PAT-2/2016-17 almost on the grounds of
facts and law as urged through present memorandum of appeal.
However the appellate authority rejected the appeal by order
dated 08.07.2016 vide no. 170/Purnea.
5. The aforesaid order was challenged further
before the learned Commercial Tax Tribunal, Patna Bihar as per
provisions available under Section 73 of the BVAT Act, 2005,
which was registered as Appeal Case No. PN-226/2016
(assessment year 2015-16) which was also rejected by the
learned tribunal and being aggrieved with same the present
appeal was preferred.
6. Hence the appeal.
7. Though several substantial questions of law,
almost 19 in number, appear to have been raised challenging the
impugned order, upon re-construction, they may be reduced to
the following substantial questions of law, which would suffice
to decide the issues involved in present appeal, and the same are
set out as below:-
(a). Whether a reading of section 60 (2)
of the Bihar Value Added Tax Act, 2005
implies that a person transporting taxable
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the prescribed format before the
authorities at the check post alone and
that until such person would furnish the
declaration he would not be allowed to
enter the territory of the state of Bihar?
(b). Whether a person upon violation of
provisions of section 60 (2) becomes
liable for penalty proceeding U/s 60(4)(b),
only when such person enters the territory
of the state and is found transporting
goods without such declaration form
which is in the shape of permit called
SUVIDHA in form DVII?
(c). Whether as long a person transporting
taxable goods is stationed at the check
post and yet to enter the territory,
application of section 60 (4) is
applicable ?
(d). As section 62 of the Bihar value-
added tax act 2005 itself prescribes that a
person transporting goods through the
territory of the state of Bihar has to obtain
the required permit from the authorities at
the check post and surrender the same to
the authority of the last check post before
leaving the state and in case of failure in
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compliance of such rule alone provision
of section 62 (1) would be deemed to
have been violated?
(e). As the holding and declaration of the
case of the petitioner being covered by
section 60 (4) of the Bihar value-added
tax act 2005 therefore imposition of
penalty under section 56 (4) (b) being
three times the amount of tax calculated
against the value of the goods despite the
admitted case of “out to out movement”
covered by section 62 of the Bihar value-
added tax act 2005 is illegal, bad and
absolutely contrary to the mandate of
law?
8. Learned counsel for the appellant submitted that
the learned Tribunal has not appreciated the issue of law as well
as facts and circumstances involved in the case of appellant. It is
pointed out that as the goods in issue was for outside the
territory of Bihar the provision of Section 60(2) of the BVAT
Act, 2005 would be applicable in the present case and not the
Section 60 of the BVAT Act, 2005. It is submitted that as the
case of appellant happened to be of out to out movement in the
territory of State of Bihar, therefore, in case of failure to obtain
the declaration required to accompany the goods and truck in
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the course of movement a penalty cannot be imposed maximum
of twice to the amount of tax liability, therefore, imposition of
three times fine to the tax liability as contributed in Section
56(4)(b) of the BVAT Act, 2005 is arbitrary in nature.
9. It is further submitted that the assessing authority
at the check ignored the unimpeachable documents and
materials accompanying the truck before imposing the penalty
in terms of provisions of Section 56(4)(b) of the BVAT Act,
2005. It was also not appreciated that there was no intention on
behalf of appellant or driver of seized truck to evade any tax
liability and in want of absence of intention to evade the tax
liability the imposition of such heavy penalty is completely
illegal. It is pointed out that the imposition of penalty is not a
routine matter and can be imposed only after satisfying with all
factual aspects and documents, which otherwise speaks in
favour of appellant and, therefore, the impugned judgment is
liable to be set aside.
10. Contrary to the aforesaid submission, learned
government counsel for the State-respondent submitted that
driver of the truck failed to produce “Suvidha D-VII”
(hereinafter referred to D-VII form) to the check post authority
and, therefore, legal presumption arises that the goods in issue
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aforesaid D-VII form was produced at the time of checking
before the concerned authority.
11. It is pointed further that present is a case qua
contradiction of legal provisions and non-production of
mandatory documents in prescribed form. In support of his
submissions learned govt. counsel relied upon the judgment of
Division Bench of this Court as available through M/s.
Navyuga Engineering Company Ltd. Vs. The State of Bihar
(Misc. Appeal No. 144 of 2023) dated 23.10.2024, where
similar issues were considered after taking note of legal report
as available through Guljag Industries Vs. Commercial Tax
Officer; (2007) 7 SCC 269, M/s. Ceat Ltd. Vs. State of Bihar
and Others; (2024) 1 BLJ 333 & also Balurghat Technologies
Ltd. Vs. State of Bihar; CWJC No. 4567 of 2015 dated
01.12.2023.
12. For the better understanding of the fact it would
be apposite to reproduce impugned judgment (annexure no. 1).
ननररय
1. प्रसतु त अपील केस सं खया – PN-226/2016, (अवनध-2015-
16) नबहार मूलयवर्नर धत कर अनधननयम, 2005 की धारा 73 के अनतररत वानरजय-कर
सं युकत आयु कत (अपील), पूनररयाँ प्रमं डल, पूनररयाँ के अपील केस सं खया-PN/VAT-
02/2016-17 मे नरनांक 08.07.2016 को पानरत नयाय ननररय के नवरद रायर नकया
रया है , नजसमे अपीलारी र का अपील असवीकृत नकया रया है ।
2. मामले का सं नकपत तथय यह है नक वाहन सं खया – AP03X-0914
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का ननरीकर नरनांक-19.02.2016 को रालकोला चे क पोसट के परानधकानरयो दारा
नकया रया नजस पर बै ट्री लरा रा जो आनध्रप्ररे श से ने पाल के नलए पनरवनहत नकया
जा रहा रा। परानधकारीयो दारा माँ र नकये जाने पर चालक सु नवधा DVII- प्रसतु त नही
नकया नजसके कारर ननरीकी परानधकारी ने इसे अनधननयम की धारा 60(2) का उलं धन
मानते हुए धारा 60(4)(a) के अनतररत माल समे त वाहन को जबत नकया एवं माल के
प्रानधकृत प्रनतनननध को कारर बताओ सूचना ननररत नकया परनतु सं तोषजनक
सपषटीकरर के अभाव मे कर ननधाररर परानधकारी ने नरनांक-01.03.2016 को
अनधननयम की धारा 60 (4) (b) सह-पनठत धारा 56(4)(b) के अनतररत र०-
7,51,430=00, शानसत अनधरोनपत करते हुए माँ रपत्र ननररत नकया नजससे असं तुषट
होकर अपीलारी र अपीलीय नयायालय मे अपील रायर नकया परनतु अपीलीय नयायालय
ने अवर नयायालय के आरे श को समपु षट करते हुए अप हुए अपीलारी र का अपील
खानरज कर नरया नजससे असं तुषट होकर नयायानधकरर के समक अपील रायर नकया
रया है ।
3. अपीलारी र के ओर से उपनसरत नवदान अनधवकता का करन है नक
माल की खरीर-नबक् री प्रानत के अनरर नही नकया रया रा, यह माल आनध्रप्ररे श से
ने पाल के नलए पनरवनहत नकया जा रहा रा। इनका कहना है नक इसमे कर–अपवं चना
की कोई मं शा नहीं रा। अतः अपीलीय नयायालय दारा पानरत आरे श मे हसतके प करते
हुए इसे खानरज की जाय एवं अपीलारी र का अपील सवीकृत की जाय ।
4. राजय सरकार के नवदान अनधवकता का करन है नक चे कपोसट के
परानधकानरयो दारा माँ र नकये जाने पर चालक या अपीलारी र का कोई प्रनतनननध
सु नवधा DVII प्रसतु त नहीं नकया नजससे सपषट होता है नक माल नबहार प्रानत मे ही
कही पर नडलीवरी की जाती । अतः अवर नयायालय एवं अपीलीय नयायालय दारा
पानरत आरे श मे नकसी प्रकार की हसतके प की आवशयकता प्रतीत नही होता है ।
इसनलए इसे समपु षट करते हुए अपीलारी र का अपील खानरज की जाय ।
5. उभय पको को सु ना एवं अवर नयायालय तरा अपीलीय नयायालय
के अनभले ख का अनु शीलन नकया तो हम इस ननषकषर पर पहुँचते है नक अनधननयम की
धारा 60(2) के अनतररत सु नवधा DVII चालक या अपीलारी र का कोई प्रनतनननध दारा
चे कपोसट के परानधकानरयो के समक प्रसतु त करना चानहए रा जो नही नकया रया
नजससे सपषट होता है नक माल की नबक् री नबहार प्रानत मे ही कर री रयी है जै सा नक
इस समबनध मे अनधननयम की धारा 62(1) मे भी वनररत है नक अरर सकम परानधकारी
के समक माल से समबननधत वाँ नछत कारजात/वै दाननक प्रपत्र प्रसतु त नही नकया
जाता है तो यह माना जाएरा नक माल की नबक् री नबहार प्रानत मे ही नकया जाएरा।
अतः अवर नयायालय एवं अपीलीय नयायालय दारा पानरत आरे श मे हसतके प करना
नयायोनचत नही है । इसनलए इसे समपु षट करते हुए अपीलारी र का अपील खानरज की
जाती है ।
फलतः अपील खानरज ।
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13. This case is mainly based upon two issues,
firstly non-production of mandatory “Suvidha D-VII” form,
before the authority concerned at Dalkola check-post, Purnea,
Bihar and secondly, the appellant was not under intention to
evade tax liability. For the better understanding of these facts it
would be apposite to reproduce D-VII form, which is as under:-
************************
FORM D-VII
Form of Declaration under Section 62 of the Bihar Value Added Tax Act, 2005
[See Rule 40]
(To be produced in Triplicate before the appropriate authority)
To,
The …………of Commercial Taxes.
In accordance with the provisions of rule 40 of the Bihar Value Added Tax Rules,
2005 I/We hereby-
(a) declare that the following consignment of …………..is being moved by
me/us/on my/ our behalf to………..by road/river craft/.
(b) apply for permission to transport the following consignment
of……..from………to………….by road/river craft/.
(c) declare that the following consignment of…………..is proposed to be
transported across the state of Bihar by me/us/on/my/our behalf by road/river craft.
1. Name and address of the consignor-
2. Taxpayer Identification Number of the consignor-
3. Name and address of the consignee-
4. Taxpayer Identification Number of the consignee-
5. Place of dispatch-
6. Designation of consignment-
7. Description of consignment-
8. Quantity-
9. Value-
10. Details of mode of transport-
11. Railway Receipt or Bill of Lading or Air Note no./Consignment Note no.-
12. In case of transport by road-
(a) Name and full address of the carrier (Transport Company, owner of the
vehicle, etc.)
(b) Details of the vehicle with its registration mark and number.
(c) Name and address of the driver of the vehicle.
(d) Name and address of the persons, if any, in charge of the goods.
Permission
I/We declare that the foregoing statement and particulars are correct and complete to the
best of my/our knowledge and belief. I/We undertake to surrender one copy of this
declaration to the authority or office to whom I/We have been directed to surrender it.
Signature of the applicant.
Status in relation to the dealer Address
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Name and style of the business for which application is made:-
Location of the place of business:-
Note:- (1) A separate application should be made for each different consignment and for
different destination.
(2) In case of transport by road or river a copy of the permit should accompany
the goods of production on demand.
(3)(a) The declaration/application by a registered dealer, shall be signed by
proprietor of the business. If an individual by the Karta, if an undivided Hindu family, by
an authorized partner, in case of a firm, by a managing director, managing agent or
principal executive officer, in the case of the company or corporation; by the principal
executive officer or officer-in charge in the case of society, club, association, Department
of Government or local authority; or by the manager declared under Section 22 or by any
one of these or the person in charge for transporting the goods on behalf of either
consignee or the consignor.)
Permit
(See Rule 40)
No. …………..
Date ………….
Office of the ………of Commercial Taxes …………Circle/check post.
No. ………..
I hereby permit the transport of the consignment detailed overleaf. Place
…………..
Signature ……………
Date…………. Designation…………..
DETAILS OF CONSIGNMENT PERMITTED TO BE TRANSPORTED
Description of goods Quantity Dated signature of the authority issuing
the permit.
1 2 3 Results of checking on the route Designation and head Description of Quantity of the goods Dated signature of quarters of the goods actually transported. the authority authority by whom mentioned in one transport of column 1. consignment was checked. 1 2 3 4 *****************************
14. For understanding the legal issues of this case it
would be apposite to reproduce Section 60(2) of BVAT Act,
2005, Section 62(1) of BVAT Act, 2005 & Rule 40 of BVAT
Rules, 2005, which are as under:-
60. Establishment of check-posts.-(2) Every person
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Schedule and subject to such conditions as may be
prescribed shall, at any check-post or barrier, referred
to in sub-section (1) and before crossing such check-
post or barrier, file before such authority or officer as
may be authorised by the State Government in this
behalf, a correct and complete declaration in such form
and manner as may be prescribed.
62. Transportation of goods through State of Bihar.-
(1) If any consignment of goods is being transported
by road from a place outside the State of vehicle shall
obtain transit permission in the prescribed manner
from the authority of through the territory of the State,
the driver or any other person in-charge of the Bihar to
another such place and the vehicle carrying the
consignment passes the first check-post falling en
route after entry into the State and shall surrender the
same transit permission to the authority of the last
checkpost before leaving the falling en route, being a
time not earlier than twenty four hours but not later
than State and in the event failure to do so within such
time of leaving the first check-pos deemed that goods
so transported have been sold by the owner or the
person in seventy two hours, as the Commissioner may
by notification specify, it shall be charge of the vehicle
within the State of Bihar].
Rule 40. Check Posts.-(1) Where the State
Government decides to set up a check-post, under
Section 60 at any place in this State, the location
of such check-post shall be notified in the official
Gazette. When a check-post is set up on a
toroughfare or road, barrier may be erected, across
the road or thoroughfare, in the Form of a
contrivance to enable traffic being intercepted,
detained and searched.
[(2)(a) No person shall transport across or beyond
a check-post to any place outside the State of
Bihar any goods other than those specified in
Schedule-1 exceeding such quantity or value as
the Commissioner may, by notification specify
except after applying for grant of and obtaining an
electronic transaction number on the official
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website of the Commercial identification Taxes
Department.
(b) Every applicant referred to in clause (a) shall,
in respect of consignments proposed to be
transported as aforesaid, upload such details as the
Commissioner may, by notification issued in this
behalf, specify.
(c) Every application under clause (a) shall be
processed, and the electronic transaction
identification number generated and
communicated to the applicant, in such manner as
may be specified in the notification issued under
clause (b).
(d) The driver of the vehicle carrying the goods or
the person incharge of the goods shall, upon
demand, communicate the electronic transaction
identification number granted in respect of the
goods to the monitoring authority for verification
who shall deal with the same in such manner as
may be specified in the notification issued under
clause (b).
(e) The manner in which the electronic transaction
identification number is to be communicated for
verification to the monitoring authority and the
period for which the said number shall be valid
may be specified in the notification issued under
clause (b).
15. It would be apposite to reproduce para no. 10 of
the Navyuga Engineering Company (supra), which is as
under :-
10. Balurghat Technologies Ltd (supra) was a
case of export into Nepal; again not attracting any
tax liability, and the vehicle was detained at the
entry check-post of the State of Bihar. The
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of transport without statutory declaration form,
which was in violation of Section 60(2) of the
Bihar VAT Act. Again, Guljag Industries and
D.P. Metals (both supra) were relied on to find
that despite the alleged transaction not attracting
tax, if the consignment is not supported by the
prescribed declaration, then it attracts the civil
liability of penalty. Therein also a subsequently
generated declaration form, after detention, was
produced which was held to be not in accordance
with the dictum of D.P. Metals (supra). The
subsequent production of a document, when the
detention was on account of declaration form not
accompanying the consignment, can only inure to
the benefit of the consignor/consignee, when the
same is generated prior to the commencement of
transportation. The Division Bench in Balurghat
Technologies Ltd. (supra) categorically relied on
the cited decisions of the Hon’ble Supreme Court
to find that if by mistake some of the documents
are not readily available at the time of checking
and when an opportunity is given in accordance
with the principles of natural justice, the
transporter or the consignor has the opportunity to
produce the document which ought to have
existed at the time of transportation which,
however was not accompanied, for reason of
human error or inadvertence.
16. With aforesaid legal principles and dictum in
hand, now we have to look at the fact of this case. It appears that
vehicle in issue was detained by State-respondents, when it
reached to Dalkola check-post. It is admitted position that upon
demand no “D-VII form” was produced before authority
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concerned. Therefore, in view of Section 60(2) of BVAT Act,
2005, a presumption can be drawn under Section 62(1) of the
BVAT Act, 2005 that the goods in issue was for sale in Bihar
only. Submission that the transportation was not under intention
to evade tax liability would be inconsequential as the imposition
of penalty is based on the contravention of the legal provisions.
17. The substantial question of law accordingly
answered in the favour of State-respondents and against the
appellant.
18. The appeal stands rejected, being devoid of any
merit as discussed aforesaid.
( Chandra Shekhar Jha, J)
Bibek Chaudhuri, J:- I agree.
(Bibek Chaudhuri, J)
S.Tripathi, Sudha/-
AFR/NAFR NAFR CAV DATE 13.03.2026 Uploading Date 19.03.2026 Transmission Date 19.03.2026