9911796707
TMI Blog1998 (11) TMI 642X X X X Extracts X X X X X X X X Extracts X X X X ..... aggrieved by the said orders, the petitioner has filed these writ petitions. 2.. As both the writ petitions involve the same controversy on identical facts, they have been heard together and are being disposed of by this common judgment. 3.. The respondents have filed counter-affidavit and the petitioner has filed rejoinder-affidavit in reply thereto. We have heard the learned counsel for the parties. 4.. The impugned orders have been challenged by the learned counsel for the petitioner on three grounds, namely, (i) they have been passed in violation of section 27 of the Finance Act inasmuch as no notice of demand under section 25 of the said Act has been issued, non-compliance of which is a condition precedent for taking action under section 27, (ii) neither any assessment proceeding as regards entry tax has been initiated, nor any assessment order has been passed so far against the petitioner on account of which there is not even determination of the tax liability; there is thus no tax due and the question of its recovery does not arise, and (iii) the entry tax, if paid on import of motor vehicles, is adjustable towards the sales tax, i.e., sales tax liability of the impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The security bond was, however, not accepted by the department as it was executed by the husbands of the two partners, who, according to the respondents, owe sales tax dues of about Rs. 3.5 crores. According to the department, inspite of letters and reminders issued by it, no other security bond has been furnished by the petitioner, on account of which no registration certificate was issued to it under the Entry Tax Act. The fact that it has not been granted registration under the Entry Tax Act is admitted by the petitioner but receipt of the notice requiring it to furnish fresh security bond has been denied by it. Be that as it may, the fact remains that the petitioner has not been registered under the Entry Tax Act. 8.. There is difference between the sales tax which is levied and collected under the Finance Act and the entry tax which is levied and collected under the Entry Tax Act. The sales tax under the Finance Act is levied on the first sale and is not required to be paid at the time when such sale is effected. Except in certain cases, such as deduction of tax at source, and payment of admitted tax at the time of filing of the returns, the dealer is required to pay sales ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extend to five per centum of the amount of tax, for each of the first three months following the expiry of such date and to 10 per centum for each subsequent month or part thereof. (4) Subject to the provisions of section 28 any amount of tax together with penalty, if any, which remains unpaid after the date specified in the notice issued under sub-section (2), or penalty imposed under sub-section (3) and remaining unpaid shall, without prejudice to any other mode of recovery, be recoverable as if it were an arrear of land revenue; 9.. In addition, it is also open to the department to take action to recover the outstanding dues of the sales tax under section 27 of the said Act, the relevant portion of which is quoted below: 27. Special mode of recovery.-(1) Notwithstanding anything contained in section 25 or any law or contract to the contrary, the prescribed authority may, at any time or from time to time, by notice in writing (a copy of which shall be forwarded to the dealer at his last address known to the said authority) direct- (a) any person from whom any money is due or may become due to a dealer who has failed to comply with a notice of demand served under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) The tax leviable under this Act shall be paid by every dealer liable to pay tax under Bihar Finance Act, 1981 or any other person who brings or causes to be brought into the local areas such scheduled goods whether on his own account or on account of his principal or takes delivery or is entitled to take delivery of such goods on such entry: Provided no tax shall be leviable in respect of entry of such scheduled goods effected by a person other than the dealer if, the value of such goods does not exceed 25 thousands in a year. (3) Notwithstanding anything contained in sub-sections (1) and (2) of this section and subject to the provisions of this Act there shall be levied and collected a tax on the entry of any motor vehicle into any local area for use or sale therein which is liable for registration in the State under the Motor Vehicles Act, 1988. The rate of tax shall be at such rate or rates as may be specified by the State Government by a notification published in the official gazette on the purchase/ import value of motor vehicle but not exceeding the rate prescribed for sales tax for such motor vehicles under the Bihar Finance Act, 1981: Provided that no tax shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordingly. Although section 8 by reference incorporates certain provisions of the Finance Act in the Entry Tax Act but those provisions have not been bodily transplanted into the latter Act. Referential incorporation as is contained in the said section, is subject to two conditions, viz., firstly the applicability of the provisions of the Finance Act is subject to the provisions of the Entry Tax Act and the Rules framed thereunder and secondly the provisions of the Finance Act shall mutatis mutandis apply to the proceedings under the Entry Tax Act. The words mutatis mutandis means with necessary changes (Chambers English Dictionary). In Ashok Service Centre v. State of Orissa [1983] 53 STC 1 (SC); (1983) 2 SCC 82 the Supreme Court, while explaining the words mutatis mutandis , held as under: Earl Jowitt s The Dictionary of English Law (1959) defines mutatis mutandis as with the necessary changes in points of detail . Black s Law Dictionary (Revised 4th Edn., 1968) defines mutatis mutandis as with the necessary changes in points of detail, meaning that matters or things are generally the same, but to be altered when necessary, as to names, offices, and the like.. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for requisition. The apex Court accordingly applied the provisions of the Land Acquisition Act to the Assam with certain changes. In this connection, the relevant portion of the judgment of the apex Court is reproduced below: If instead of the word acquisition the word requisition is read, and instead of the words the market value of the land the words the market value of the interest in the land of which the owner has been deprived are read, the two subsections of the section can, without any difficulty, be applied to the determination of compensation for requisition of a land. So too, the other sections can be applied. 14.. In the instant case also, the provisions of the Finance Act as regards assessment, reassessment, payment/collection of entry tax and the penalty have been mutatis mutandis applied to the Entry Tax Act. The result is that action to recover entry tax can be taken under the relevant provisions of the Finance Act but if the recovery of such a tax under the original provisions of the Finance Act is not possible, necessary changes have to be read in those provisions so as to effectuate the legislative intention and make them workable and in harmony ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has been defined by section 2(e) of the Entry Tax Act as under: 2(e) Import value means the value of scheduled goods as ascertained from the purchase invoice/bills and includes insurance charges, excise duties, countervailing duties, sales tax, transport charges, freight charges and all other charges incidental to the import of scheduled goods: Provided that where the purchase invoice/bills are not produced or when the invoice/bills produced are proved to be false or if, the scheduled goods are acquired or obtained otherwise than by way of purchase the import value shall be the value or price at which the scheduled goods of like kind or quality is sold or capable of being sold in open market. Normally, the import value which is the basis for determining entry tax has to be ascertained from the purchase invoice/bills and other papers relating to incidental charges mentioned in the said provisions. Every importer of the scheduled goods has to produce such bills/papers before the concerned authority at the time of entry of the goods into the local area and he has also to pay the entry tax calculated on the basis of the import value of the scheduled goods over there at that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not liable to tax on the ground that tax was paid at the first point of entry into a local area he shall furnish along with his return a statement in form ET-XI showing separately the total purchases made from each registered dealer who as first importer paid the tax at the time of first entry of the concerned scheduled goods in a local area. The statement shall be furnished separately in respect of dealers registered under different circles and shall be signed by the dealer or his declared manager. Rule 5 requires maintenance of accounts, etc. Rules 6, 7 and 8 deal with the exemption. The filing of returns under rule 4 is in addition to payment of entry tax at the time of entry of goods into local area. Even if a person who imports scheduled goods files returns, his obligation to pay entry tax at the time of entry of goods into the local area is not dispensed with. 18.. On the basis of the returns filed by the importer his total liability of tax is determined. The tax paid on the import of vehicles is also adjusted towards the sales tax in accordance with section 4. In the present case, the petitioner has neither paid the entry tax at the time of entry of goods into the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner has submitted that even if an importer has neither paid the entry tax at the time of entry of goods into the local area, nor has he filed returns, it is not open to the respondents to recover said tax from him without making assessment order under section 17 of the Finance Act. This submission has to be rejected for two reasons, namely (i) even if the assessment is condition precedent for recovering the tax due, it is not a fit case to interfere with under article 226 of the Constitution. As mentioned hereinabove, paragraph No. 27 of the counter-affidavit, which contains the amount of tax due from the petitioner, has not been disputed in rejoinder-affidavit. In such a situation even if there is some technical error such as absence of formal assessment order, this Court is not bound to interfere, and (ii) assessment in the sense it is understood under the Finance Act is not required to be made with regard to the entry tax which is to be paid at the time of entry of goods into the local area. At that time the tax is calculated on the import value at the rate fixed by the Government on the basis of purchase invoice/bills and other papers relating to incidental charges in terms of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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