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TMI Blog2014 (11) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... me should be construed strictly. Its construction cannot be extended beyond the language used in the charging section. no entry tax can be levied on scheduled goods purchased inside the local area from another registered dealer of the same local area who brought the scheduled goods into the local area. Whether under law it is obligatory on the part of a dealer to furnish Form E-1 in respect of the goods purchased by it from 13 another registered dealer of the same local area who brought the scheduled goods in question into the local area - Held that:- The information required to be declared under column 8 is in consonance with the proviso to sub-section (2) of Section 3 which provides that no tax shall be levied under the Entry Tax Act on the entry of scheduled goods into a local area, if it is proved to the satisfaction of the assessing authority that such goods have already been subjected to entry tax or that the entry tax has been paid by any other person or dealer under the Act. Thus, Form E1 has to be furnished by a dealer who brings the scheduled goods into the local area and claims that in respect of such goods entry tax has been levied earlier - under law it is not oblig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e correctness of its claim that the goods purchased by it has suffered tax at the hands of any purported selling dealer - Held that:- dealer who claims that no tax is payable on entry of scheduled goods into the local area has to file requisite Form E-1 along with return as prescribed under the Statute. Form E-1 which has been filed in respect of the scheduled goods purchased from M/s. Lubrico, Bhubaneswar (RC No.BH I 895) is incomplete/defective and therefore, does not meet the requirement in order to prove that the dealer-petitioner is not liable to pay entry tax. The burden is on the dealer to file complete and defect free Form E-1. It is not open to contend that to test correctness of its claim the Department has to summon or call for the records of selling dealers or of any other person or to conduct any inquiry. The burden lies squarely on the dealer to substantiate its claim and if it is not done the consequence is that it is liable to pay tax. dealer who has brought the scheduled goods into the local area and has filed defective Form E1 cannot call upon the Department to summon or call for the records of the selling dealer or any other person or to conduct inquiry to test t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoices. Reliance was also placed on Form E1 produced in support of the claim that the goods purchased by the petitioner have already suffered entry tax earlier. However, by order dated 24.03.2011 learned First Appellate Authority dismissed the appeal and upheld the levy by holding that there is no mention on the invoices that entry tax has been collected from the petitioner by sellers of the goods. Being aggrieved, petitioner carried the matter before the Tribunal in Second Appeal, which was registered as SA No.53(ET)/2011-12. The learned Tribunal vide its order dated 02.11.2012 dismissed the Second Appeal holding that the action of the learned 1st Appellate Authority is appropriate and legal and there is no justifiable reason to interfere with the order of the learned JCST, which is found to be lawful. Hence, the present Sales Tax Revision Petition. 3. Mr. N. Paikaray, learned counsel appearing on behalf of the petitioner submitted that the impugned order of assessment dated 09.03.2007 passed under Section 7 of the OET Act is bad, unjust and illegal. Since no statutory notice was issued and served on the petitioner for the purpose of assessment under the Entry Tax Act, the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty rests on these registered selling dealers under the OST Act. Under Section 3 of the OET Act, the liability to pay tax was attached with them inasmuch as they had bought the lubricants into the local area from outside the local area by way of stock transfer. Since the selling dealers have made compliance of their statutory liability by paying the entry tax, no liability under the OET Act can be fastened with the petitioner. There has been misconstruction of taxable event and improper selection of taxable person. It is asserted by the petitioner that the entry tax has been paid by the selling dealer as per the provisions of OET Act, more particularly, the charging section and hence, onus to disprove shifts onto the Revenue, which has not been discharged by the authorities below. Therefore, the orders of the authorities below are liable to be held perverse. 5. Mr. Raman, learned Standing Counsel for the Sales Tax Department supported the order of the learned Tribunal as well as the orders of the first appellate authority and assessing authority. 6. In the present case, the petitioner is a dealer, inter alia, dealing with lubricants which are scheduled goods and liable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is confirmed. 8. The learned Tribunal in second appeal inter alia has observed as follows:- 3. In the second journey to the Tribunal, the learned Advocate for the appellant filed Xerox copy of statement of purchase and prayed for verification of the same by the lower forum. The State has also filed cross objection and submitted the order of learned JCST to be just and proper. The revenue has also pressed that the dealer failed to substantiate his claim u/r.3(5) of the OET Rules by submitting E1 form and that the forms produced as having deficiencies in Col. 3, 4 and 6. 4. Heard both the parties. It is evident from the order of the first appellate authority that in compliance to the order of this Tribunal he has verified the details as produced before him i.e. the purchase invoices of the following dealers:- (i) M/s. Golf Oil India Ltd. (ii) M/s. Pennzoil Quaker State (I) Ltd. (iii) M/s. Lubrico, Bhubanewar (iv) M/s. Valvolin Cummins Ltd. After due examination learned JCST disallowed the claim and did not accept the E1 form. So it is very evident that he has duly acted upon the order of this Tribunal. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oid as no statutory notice was ever issued or served on the dealer for the purpose of assessment? (H) Whether the impugned levy of entry tax is without jurisdiction and without any authority of law in respect of the scheduled goods purchased within the local area of Cuttack Municipal Corporation from the sellers of the goods who are registered under the sales tax Circle, where the petitioner is registered? According to us, the above questions would not be proper questions of law to be adjudicated in the case at hand. 10. The real questions of law which need to be answered in view of various contentions taken before us are as follows:- (i) Whether entry tax can be levied on scheduled goods purchased inside the local area from another registered dealer of the same local area who brought the scheduled goods into the local area? (ii) Whether under law it is obligatory on the part of a dealer to furnish Form E-1 in respect of the goods purchased by it from another registered dealers of the same local area who brought the scheduled goods in question into the local area? (iii) Whether to get the benefit from payment of entry tax in respect of the sched ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the entry of scheduled goods into a local area, if it is proved to the satisfaction of the assessing authority that such goods have already been subjected to entry tax or that the entry tax has been paid by any other person or dealer under this Act. 12. Bare reading of the above provisions of Section 3 envisages that there is a declaration of liability. It provides that there shall be levied and collected tax on entry of scheduled goods into the local area for consumption, use or sale therein. It further provides that the tax leviable under the Entry Tax Act shall be paid by a dealer in scheduled goods or any other person, who brings or causes to be brought into the local area such scheduled goods whether on his own account or on account of his principal or customer or takes delivery or is entitled to take delivery of such goods on such entry. The proviso says that no tax shall be levied under this Act on the entry of scheduled goods into the local area, if it is proved to the satisfaction of the assessing authority that such goods have already been subjected to entry tax or that the entry tax has been paid by any other person or dealer under this Act. Further entry of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iso to sub-section (2) of Section 3 which provides that no tax shall be levied under the Entry Tax Act on the entry of scheduled goods into a local area, if it is proved to the satisfaction of the assessing authority that such goods have already been subjected to entry tax or that the entry tax has been paid by any other person or dealer under the Act. Thus, Form E1 has to be furnished by a dealer who brings the scheduled goods into the local area and claims that in respect of such goods entry tax has been levied earlier. 18. In view of the above, we are of the considered opinion that under law it is not obligatory on the part of a dealer to furnish Form E-1 in respect of the goods purchased by it from another registered dealer of the same local area who brought the scheduled goods in question into the local area. 19. Question No.(iii) is whether to get the benefit from payment of entry tax in respect of the scheduled goods purchased by a dealer from another registered dealer of the same local area, who brought the said goods into the local area, the dealer has to prove that its seller has in fact paid the tax. 20. The incidence of taxation is on entry of the scheduled goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Form E3 makes it clear that it is obligatory on the part of the dealer, who brings the scheduled goods into the local area, to furnish Form E-1 along with return to prove that the scheduled goods purchased by it from another dealer have already been subjected to entry tax or that the entry tax has already been paid under the Entry Tax Act for such goods. Thus, sub-rule (5) of Rule 3 of the OET Rules is mandatory in nature. 27. Perusal of Form E-1 reveals that a dealer in order to prove that the goods purchased by him have already been subjected to entry tax or that the entry tax has already been paid under the OET Act for such goods, he has to furnish details in Form E-1 about (i) registration number and name of the dealer from whom purchased, (ii) name of the scheduled goods purchased, (iii) bill/invoice number and date, (iv) quantity, (v) purchase value of the goods as per invoice, (vi) entry tax paid as per invoice, (vii) remarks. As it appears, Rule 3 (5) has been prescribed to seal/plug leakage/evasion of entry tax and ensure payment of entry tax leviable and payable on purchase of scheduled goods. 28. Law is well-settled that when the statute requires to do certain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s into the local area has to file requisite Form E-1 along with return as prescribed under the Statute. 32. Admittedly, in the instant case, Form E-1 which has been filed in respect of the scheduled goods purchased from M/s. Lubrico, Bhubaneswar (RC No.BH I 895) is incomplete/defective and therefore, does not meet the requirement in order to prove that the dealer-petitioner is not liable to pay entry tax. The burden is on the dealer to file complete and defect free Form E-1. It is not open to contend that to test correctness of its claim the Department has to summon or call for the records of selling dealers or of any other person or to conduct any inquiry. The burden lies squarely on the dealer to substantiate its claim and if it is not done the consequence is that it is liable to pay tax. 33. In view of the above, we are of the considered opinion that a dealer who has brought the scheduled goods into the local area and has filed defective Form E1 cannot call upon the Department to summon or call for the records of the selling dealer or any other person or to conduct inquiry to test the correctness of its claim that the goods purchased by it has suffered tax at the hands of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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