9911796707
TMI Blog1994 (8) TMI 273X X X X Extracts X X X X X X X X Extracts X X X X ..... eck-posts or barriers misusing their power under section 16-A of the Orissa Sales Tax Act, 1947 (hereinafter referred to as "the Act") read with rule 94 of the Orissa Sales Tax Rules, 1947 (hereinafter called "the Rules") unreasonably detain the goods and on the plea that value of the goods is not correctly mentioned in the way-bills and the goods may not be accounted for in future because of such undervaluation, while selling them within the State, demand and under pressure recover sales tax in an arbitrary and illegal manner. It is also their grievance that before collecting sales tax they are not given notice as required by rule 94, nor reasons are recorded for the apprehension that there is likelihood of evasion of tax in respect of those goods. They, therefore, want this Court to issue a writ of mandamus or any other appropriate order directing the authorities to refund the sales tax so collected in respect of the consignments which are the subject-matter of these petitions. The petitioners have also challenged the validity of sub-sections (9) and (10) of section 12 of the Act. But at the time of hearing of the petitions, learned advocates appearing for the petitioners stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State, it is necessary so to do, they may by notification direct the setting up of a check-post or the creation of a barrier or both, at such place or places as may be notified. (2) At every check-post or barrier mentioned in sub-section (1), or at any other place when so required by any officer empowered by the Commissioner in this behalf the driver or any other person-in-charge of a goods vehicle or boat shall stop vehicle or boat, as the case may be, and keep it stationary as long as may reasonably be necessary, and allow the officer-in-charge of the check-post or barrier, or the officer empowered as aforesaid to examine the contents, in the vehicle or boat and inspect all records relating to the goods carried, which are in the possession of such driver or other person-in-charge, who shall, if so required, give his name and address and the name and address of the owner of the vehicle or boat. (3) The officer-in-charge of the check-post or barrier, or the officer empowered as aforesaid shall have power to seize and confiscate any goods which are under transport by a goods vehicle or a boat and are not covered by a waybill issued by the person who consigns the goods, in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (4), before its amendment in 1991, did not contain the words "or apprehends, for reasons to be recorded in writing, that there is likelihood of evasion of tax." It appears that the said sub-rule was amended in 1991 as a result of the decision of this Court in the case of Orient Paper Industries Ltd. v. State of Orissa [1995] 97 STC 490; (1991) I OLR 91. As regards the extent of power of an officer-in-charge of a check-post, this Court in that case has observed as under: ".....once there is no defect in the way-bill or the same is not incomplete, their jurisdiction to detain the goods would arise only if there be evasion of tax.... Once the way-bill is found free from defect and is complete, the question of detention of goods can arise only if there be evasion of tax. As to this, it may be observed that question of evasion arises once the transaction has become taxable which would be when there has been either a sale or a purchase. As to the goods which are brought from outside the State, it is apparent that the same being in the course of inter-State trade or commerce, the liability to tax depends upon the situs of the sale. As in most of these cases the movement of the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and confiscate the said goods. But he is put under an obligation to release those goods on payment of tax payable in respect of such goods. Section 16-A further specifically provides that no order of confiscation shall be made in respect of the goods which are not liable to payment of tax. In the light of this statutory provision, we shall have to consider what an officer-in-charge of a check-post can do acting under rule 94 of the Rules. So far as detention of the vehicles for a reasonable period and examination of the goods and documents are concerned, the petitioners have no serious objection. What is objected is levy of sales tax on the goods so carried on the ground that in the way-bills correct valuation of the goods is not shown and, therefore, there is likelihood of evasion of tax in future in respect of those goods. The actions of the officers-in-charge of the check-posts are not sought to be justified in these cases on the ground that the way-bills were defective or incomplete as all the details which are required to be stated in the way-bills can be noticed in those way-bills. In O.J.C. No. 1643 of 1993, the officer-in-charge of the concerned check-post has filed a rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat on any previous occasion any of these registered dealers had not correctly shown the turnover of their sales or the price at which they had sold such goods in the local market. Merely because the price at which the petitioners purchased their goods from outside the State was less, the checkpost officers should not have jumped to the conclusion that the purchase price was deliberately shown less with a view to evade payment of proper sales tax in future. They appear to have acted on a mere suspicion that the registered dealers may not maintain proper accounts in respect of such goods and may show a lower sale price falsely representing that the goods were of poor quality. We emphasise that we are in those petitions concerned with registered dealers and it is not in dispute that they had purchased the goods from registered dealers of other States and that the goods brought within the State were for future sale. Moreover, in case of registered dealers it would not be difficult for the assessing authority to levy and collect the proper amount of tax at the time of regular assessment. If it is suspected by the check-post officer that a registered dealer may not later on show the cor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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