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TMI Blog2008 (7) TMI 861X X X X Extracts X X X X X X X X Extracts X X X X ..... - - - - Dated:- 30-7-2008 - CHAUHAN B.S. DR. C.J. AND MAHAPATRA B.N. , JJ. B.N. MAHAPATRA J. In this writ petition the petitioner challenges receipt dated November 27, 1998 (annexure 4) issued by the Sales Tax Officer (Vigilance), Sambalpur [hereinafter referred to as the STO(V) ] by which collection of tax and penalty has been made from the petitioner treating said receipt as order of assessment of tax and penalty, and also the order dated October 20, 2000 (annexure 6) passed by the Additional Commissioner of Commercial Tax, Northern Zone, Orissa, Sambalpur (hereinafter called as, the revisional authority ) in revision case No. SA1027/98-99, by which he allowed adjustment of the tax collected by the aforesaid receipt in the quarterly return of the petitioner but refused to interfere with imposition of penalty. Petitioner's case in brief is that it is a registered dealer under the provisions of the Orissa Sales Tax Act, 1947 (hereinafter called, the OST Act ) within the territorial jurisdiction of the Sales Tax Officer, Sambalpur-I Circle, Sambalpur and is engaged in dealing in marble, ceramic tiles, etc. The petitioner is also a registered dealer under the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot inclined to interfere with the imposition of penalty. He also held that the value of the goods has been rightly estimated at Rs. 60,000 taking into consideration the freight charges, margin of profit and other charges. The learned counsel for the petitioner vehemently argued that while the goods were in transit and the sale was not completed, the levy of tax and penalty is premature. In support of his contention, learned counsel for the petitioner relied on a decision of this court in Orient Paper Industries Ltd. v. State of Orissa [1995] 97 STC 490. He also relied on the decision of this court in case of Utkal Galvanisers Limited v. Commissioner of Commercial Taxes [1997] 104 STC 222 and contended that the dealer being a registered dealer no tax should have been levied while the goods were in transit. He further contended that opposite party No. 2 is an officer under the authority of the Director General of Police in the Home Department of the State and therefore he is not empowered to collect tax and penalty from the petitioner. In support of his submission he relied upon the judgment of this court reported in Dutta Traders v. Sales Tax Officer, Vigilance, Balasore Circle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection also provides for levy of penalty at the rate of three times of tax calculated on the value of the goods in respect of which no particulars or information have been furnished under section 42(1) of the Act or no cash memo or challan has been produced before the competent authority under section 42(3) or Rs. 1,000, whichever is greater. The said section empowers the appointed authority to enter and search any place of business of any dealer if he has reason to believe that any dealer is attempting to evade tax or that any person transporting goods for any other person who has kept his accounts in such a manner as is likely to cause evasion of tax. As per the accepted norms of taxation the jurisdiction whatever is ancillary or subsidiary provision necessary for achieving the object of a tax statute is covered by entry 54 of List II of the Seventh Schedule to the Constitution of India. The entries in the legislative List have a very wide meaning and scope and should have a broad interpretation so as to make provisions in the Act workable and in the interest of revenue. The obligation imposed upon the transporters under sections 42 and 44 of the Act is also a part of such preven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner's place of business. On the way when the said vehicle was intercepted by the STO (V) it was found that the goods carried in the vehicle were not covered by statutory way-bill and the vehicle entered inside the State of Orissa crossing the State border avoiding border check gate infringing the statutory provisions. Thus, the case of the petitioner is different from that case and the principles decided in that case has no application to the case of the petitioner. The principle decided in Orient Paper Mills' case [1995] 97 STC 490 (Orissa) is applicable to the bona fide dealers transporting goods following the procedure of law. It is not applicable to a dealer like the petitioner who was transporting goods infringing the statutory provisions. In the case of Utkal Galvanisers [1997] 104 STC 222 the petitioner was a dealer registered under the Orissa Sales Tax Act, 1947 and the Central Sales Tax Act, 1956. The petitioner was transporting an excavator purchased in the process of inter-State trade on the strength of declaration in form C . The vehicle carrying the article in question was detained by the Check-post Officer, who wanted certain particulars and rectific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive or that there is evasion of tax or apprehends for reasons to be recorded in writing that there is likelihood of evasion of tax in respect of the goods carried in the vehicle or boat, he shall, in order to prevent or check evasion of tax, serve on the owner of the goods or any person in his behalf a notice in form No. VIB giving an opportunity to rectify the defects or omission, if any, or an option to pay such amount as may be indicated by the officer-in-charge of the check-post or barrier. If the owner of the goods or any person on behalf of such owner fails to pay the tax, the officer-in-charge of the check-post or barrier shall order the unloading of goods, seize and confiscate them after following the procedure contained in the said rule. Rule 94A provides for inspection of goods while in transit at any place other than check-post or barrier. The driver or any other person in-charge of a goods vehicle or boat shall stop the carrier on demand by an officer of the department not below the rank of an Assistant Sales Tax Officer and keep it stationary as long as it is required and allow examination of the goods in the vehicle or the boat and inspection of all the records con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the imposition of penalty in case of violation of the said Rules and in the event of failure to pay the tax and penalty the officer-in-charge of the check-post/barrier shall order confiscation of the goods. The petitioner herein has not challenged the constitutional validity of any of the above provisions. In the case at hand, the petitioner is a registered dealer under the OST Act and goods in question were purchased by the petitioner from outside the State. The seller consigning the goods from outside the State to the petitioner is obliged under rule 94(3)(f) to obtain the way-bill form from the consignee-petitioner. Under rule 94(3)(g) the driver or the person incharge of the goods vehicle is under statutory obligation to carry the requisite way-bills in triplicate in respect of the consignment and tender the original and duplicate copy of the way-bill to the officer-in-charge of check-post through which the goods vehicle first passes. In this case, the vehicle carrying goods avoided the border check gate, i.e., Shohela checkgate and entered inside the State of Orissa through a bypass way. Thereafter, the vehicle was intercepted by the STO (V) en-route and on inspecti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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