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TMI Blog2010 (7) TMI 916X X X X Extracts X X X X X X X X Extracts X X X X ..... S B.P. AND MAHAPATRA B.N. , JJ. B.N. MAHAPATRA J. This writ petition has been filed with a prayer for quashing the order dated September 11, 2009 (annexure 1) passed by the Sales Tax Officer, Unified Check Gate, Girisola, Ganjam, opposite party No. 2 (hereinafter mentioned as the STO ) in which the STO levied Rs. 4,51,693 towards tax, surcharge and penalty under the Orissa Sales Tax Act, 1947 (for short the OST Act ) and Rs. 55,536 towards tax and penalty under the Orissa Entry Tax Act, 1999 (for short, the OET Act ) as well as the order dated October 8, 2003 (annexure 3) passed in PU 224/2003-04 by the Additional Commissioner of Sales Tax, South Zone, Berhampur (for short, the Additional Commissioner ) declining to interfere with the order of the STO. Bereft of unnecessary details, the facts and circumstances giving rise to the present writ petition are that the petitioner is a company registered under the Companies Act, 1956 having its registered office in the district of Singhbhum (East) of Jharkhand State. It carries its business of manufacturing steel and iron rods. The petitioner for its manufacturing process imports white kerosene oil from M/s. Annapurna Niwas P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consignments, rather produced receipts of goods within a stipulated period. Taking the advantage of innocence of the driver, opposite party No. 2 prepared a statement and forcibly obtained his signature. Since, pursuant to the show-cause notice, the driver of the tanker had explained in writing that goods were received outside the State as per the undertaking given at the entry gate, the presumption of violation of the declaration furnished at the entry point is without any basis. Without making proper investigation levy of tax, surcharge and penalty is not justified. Therefore, the orders passed under annexures 1 and 3 are not sustainable in the eye of law. On being noticed, O.P. No. 3, the consignor filed counter-affidavit repudiating the allegations made by the Sales Tax Officer (O.P. No. 2) in his order. It is stated that O.P. No. 3 is the licensed importer of super kerosene oil and the petitioner used to purchase imported super kerosene from it by placing purchase orders. It (O.P. No. 3) being the consignor in the transaction had no authority or business to enquire into the manner of utilization of the goods sold on receipt of cost of goods along with CST and after loadi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e presumed that the goods carried thereby have been sold within the State by the owner or person in-charge of the vehicle or boat: Provided that where the goods carried by such vehicle or boat are, after their entry into the State, transported outside the State by any other vehicle, boat or conveyance, the onus of proving that the goods have actually been moved out of the State shall be on the owner or person in-charge of the vehicle or boat. Explanation. In a case where a vehicle or boat owned by a person is hired for transportation of goods by any other person, the hirer of that vehicle or boat shall, for the purpose of this section, be deemed to be the owner of the vehicle or boat, as the case may be. (2) The officer in-charge of any check-post or barrier or any other officer, not below the rank of a Sales Tax Officer, duly authorized by the Commissioner, may detain any vehicle or boat and keep it stationary as long as may reasonably be necessary for examination of the contents therein and the records relating to the goods under transport by such vehicle or boat, and seize the same if (a) it is presumed under sub-section (1) that the goods carried by the vehicle or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transit pass after depositing the duplicate with the officer in-charge of the exit check-post/barrier. Explanation. 'Transit pass' duly signed by the officer in-charge of the check gate referred to in this rule shall be deemed to be 'waybill' as provided under section 16A of the Orissa Sales Tax Act. (emphasis Here italicised. supplied) A conjoint reading of the provisions of section 16AA of the OST Act and rule 94C of the OST Rules makes it clear that when a vehicle or a boat carrying goods coming from any place outside the State and bound for any other place outside the State, passes through the State, the driver or any other person in-charge of such vehicle or boat, shall produce before the officer in-charge of the entry check-post/barrier a transit pass in form XXXII-T in triplicate containing the declaration that the goods under transport shall not be unloaded, delivered or sold in the State. The STO incharge of the entry check-post/barrier duly signs the transit pass, keeps the original with him hands over the duplicate and triplicate copies to the driver or any other person claiming to be in charge of such vehicle. The driver or any other person in ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransport are not available at the time of seizure of the vehicle or boat, as the case may be, the officer may detain the vehicle until such penalty and tax are paid. Thus, when a vehicle or boat carrying goods, coming from any place outside the State and bound for any other place outside the State, passes through the State, it is obligatory on the part of the driver or any other person in-charge of the vehicle or boat to deliver the triplicate copy of the transit pass obtained from the entry check gate to the officer in-charge of last check-post/barrier before the vehicle along with goods leaves the State. On failure to discharge such obligation it shall be presumed that the goods carried by the vehicle has been sold within the State and the driver or the person in-charge of the vehicle or boat shall pay tax and penalty as provided in section 16AA of the OST Act. In the present case demands have been raised for violation of the declaration made by the driver of the vehicle bearing registration No. WB03-A-9467 in the transit passes in several times. On August 6, 2003, while the said vehicle reached the Unified Check-gate, Girisola, loaded with 20 KL of super white kerosene valued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... side the State and not sold inside the State of Orissa as presumed by the learned STO. The revisional authority on verification of the case records found that the driver of the vehicle in his statement dated September 11, 2003 recorded by the learned STO had categorically stated before the learned STO that he was driving the alleged vehicle only for that particular consignment and did not know anything about the transaction of any consignment by the said vehicle previously. Interestingly, the same driver has signed all the other previous six delivery challans-cum-invoices, etc. But different persons have signed in the declarations in the transit passes bearing Nos. 00485, 12953, 08523, 21275, 24259, 15344 and 08550 as revealed from the connected records received from the check-post. This clearly proves that the acknowledgment receipts produced by the consignee are false and fabricated to escape from a valid charge of clandestine sale inside the State of Orissa with an ulterior motive to evade tax. It is also not at all believable that in all the six previous occasions due to heavy rush at the exit check-post at the Unified Check-post, Jamsola, the driver of the vehicle could not ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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