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TMI Blog2010 (7) TMI 915X X X X Extracts X X X X X X X X Extracts X X X X ..... hereon and by issuing fresh demand on the petitioner after adjusting therefrom the tax and penalty already deposited by the petitioner pursuant to the interim direction passed in the writ application, while directing interim release of the vehicle/goods. - W.P. (C) No. 2037 of 2009 - - - Dated:- 2-7-2010 - GOPALA GOWDA V. C.J. AND INDRAJIT MAHANTY, JJ. ORDER:- The order of the court was made by INDRAJIT MAHANTY J. This writ application has been filed by the petitioner-M/s. Jai Jagannath Marble seeking to challenge an order dated February 6, 2009, passed by the learned Additional Commissioner of Commercial Taxes, Northern Zone, Orissa, Sambalpur (opposite party No. 2), confirming the order passed by the Sales Tax Officer (Vigilance), Sambalpur (Opposite Party No. 3) in which, while coming to a finding that, the dealer had been found to be carrying excess stock of marble and the same was detected at the Konoktora Check Gate on February 22, 2009 and levied tax and penalty both under the Orissa Value Added Tax Act as well as the Entry Tax Act. The learned senior counsel appearing for the petitioner, inter alia, assails the aforesaid impugned orders on the ground th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, it raised total demand and penalty under both the Entry Tax Act and the OVAT Act as Rs. 2,70,798. Challenge had been made to this order by the assessee-petitioner, by way of a Revision Case No. 296 of 2008-09 before the Additional Commissioner of Commercial Taxes, Northern Zone, Orissa, Sambalpur which came to be disposed of vide order dated February 6, 2009 rejecting the revision filed by the petitioner confirming the order passed by the Asst. Commissioner of Commercial Taxes (Vigilance), Sambalpur. Insofar as the contention raised by the learned counsel for the petitioner is concerned, vis-a-vis the applicability of section 101 of the OVAT Act, and inapplicability of section 74(5) of the OVAT Act, it became necessary to quote the said provisions hereunder: 101. Special provision relating to under-invoicing. (1) Where the Commissioner has, for the purpose of any proceeding under this Act, reasons to believe that any goods kept in stock or being carried by a dealer or any person on behalf of a dealer are undervalued or underpriced in any document relating to such goods produced before him, he may, after causing such inquiry as he considers necessary in the circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d prescribed authority may admit an application made after the expiry of the period of thirty days, if he is satisfied that the applicant had sufficient cause for not making the application within the said period. 74.. Establishment of check-posts and inspection of goods while in transit. (1) to (4) . . . (5) The officer-in-charge of the check-post or barrier or the officer authorized under sub-section (3), after giving the driver or person in charge of the goods a reasonable opportunity of being heard and holding such enquiry as he may deem fit, may impose, for possession or movement of goods (in transit), whether seized or not, in violation of the provisions of clause (a) of sub-section (2) or for submission of false or forged documents or way bill either covering the entire goods or a part of the goods carried, a penalty equal to five times of the tax leviable on such goods, or twenty per centum of the value of goods, whichever is higher, in such manner as may be prescribed. On perusal of the facts in the present case as would be evident from the documents appended thereto, we are of the considered view that section 101 of the OVAT Act has no application to the facts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther penalty on the petitioner beyond the amount already deposited. In the aforesaid regard, Mr. Kar, learned counsel for the Revenue, supported the revisional order impugned before us and stated that it became rampant practice in certain specific trades such as marble , that the quantum of goods actually brought into the State of Orissa is underdeclared and consequently, leading to a huge loss of State revenue, due to such activities on the part of certain traders and submits that the penalty imposed is in terms of section 74(5) of the OVAT Act, since the Legislature had mandated the levy of penalty at five times of tax amount in order to prevent unscrupulous dealers from avoiding of lawful obligations. In this respect, he submits that the Revenue have no discretion in this matter and if a person is found to have presented false documents pertaining to the goods sought to brought into the State of Orissa, apart from the tax leviable therefrom, he is also liable to pay penalty at five times the tax imposed and in this respect the assessing officer has no discretion in the matter regarding levy of penalty and, therefore, prays dismissal of the writ application. In this respe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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