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TMI Blog2003 (11) TMI 567X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to Talcher. Thereafter, while the said goods were being transported from Talcher to Angul by a mini truck bearing registration No. ORW-393, the said mini truck was intercepted by the authorities of the Sales Tax Department. The Sales Tax Officer, Dhenkanal Circle, Angul issued a notice dated August 11, 2003 to the petitioner No. 10, namely, driver of the said mini truck in form VI-B prescribed under rule 94 of the Orissa Sales Tax Rules, 1947 stating therein that no Government way bills were being carried with the goods in the said mini truck and there were no documents in support of the goods loaded in the truck. By the said notice the petitioner No. 10 was also given opportunity to rectify the aforesaid defects and an option to pay the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner No. 10. He submitted that petitioners Nos. 1 to 9 are prepared to pay tax on the goods purchased by them on the basis of their valuation. But they cannot be forced to pay the penalty and double penalty calculated by the Sales Tax Officer at a huge amount. 4.. Mr. Kar, learned Additional Standing Counsel (C.T.), on the other hand, submitted that admittedly no way bill was being carried along with the goods and no supporting documents were also produced by the driver of the aforesaid vehicle and in the circumstances, the Sales Tax Officer had no option but to demand the tax and penalty from the petitioners. 5.. Sub-section (5) of section 16-D of the Orissa Sales Tax Act, 1947 is quoted hereinbelow: "16-D. Production and inspection o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proviso to sub-section (5) further provides that where person affected makes payment to the Commissioner, the amount of tax at the appropriate rate payable in respect of such goods to be assessed in the prescribed manner with a penalty equivalent to 20 per centum of the value of the goods seized, the goods and the vehicle seized as aforesaid shall be released. Thus, the pre-condition of exercise of power of seizure and confiscation under sub-section (5) of section 16-D of the Act is that the goods are not accounted for by the transporter, bailee or the owner, as the case may be, in his accounts, registers, and other documents maintained in respect of such goods. Accordingly, even in a case where the goods are not supported by the documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson are ascertainable give him an opportunity of being heard before ordering confiscation. In the case of non-perishable goods, at least 7 days time shall be given for the owner of the goods, to state his case before the officerin-charge of the check-gate." 7.. In our considered opinion, therefore, the petitioner Nos. 1 to 9 who claim to be the owners of the goods should have been given opportunity in terms of the aforesaid sub-section (5) of section 16-D of the Act to account in his accounts, registers and other documents maintained in respect of such goods and an opportunity of hearing in terms of sub-rule (5) of rule 94 of the Orissa Sales Tax Rules, 1947 before issuing the impugned notice dated August 15, 2003. 8.. For the aforesai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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