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TMI Blog2019 (3) TMI 1965X X X X Extracts X X X X X X X X Extracts X X X X ..... K.S. JHAVERI (CHIEF JUSTICE) AND K.R. MOHAPATRA, JJ. Heard learned counsel for the parties. 2. By way of this writ petition, the petitioner has challenged the order dated 25.06.2005 (Annexure-8) passed by the Assistant Commissioner of Sales Tax, Sundargarh Range, Rourkela wherein in a suo motu revision proceeding initiated under Rule 80 of the O.S.T. Rules, re-assessment for the year 1997-98 has been made. 3. Learned counsel for the petitioner mainly contended that the petitioner was originally granted exemption for Pioneer Industry for the period from 03.01.1996 to 02.01.2003 vide order dated 28.11.1997 passed by the Director of Industries, Orissa. The total amount of ₹ 3,94,56,303/- was certified by the Director of Industries, Orissa vide order dated 24.12.1996. Taking into consideration the same, the Sales Tax Officer, Rourkela-I Circle passed the order of assessment for the year 1997-98 as at Annexure-4 and the Sales Tax Officer while considering the exemption on sale observed as under: .The dealer has availed tax exemption @4% on purchase of raw materials and Plant Machinery against Form I-D (92) as detailed below. Purchase of raw Mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in order and to compute the exemption of sales tax under IPR, 1992 accordingly. Further the learned Assessing Officer is directed to compute the exemption of tax on the balance of the sales turnovers against which, the appellate could not furnish any declaration in form C as per the provision of section 8(2)(a) of the C.S.T. Act, being the sale value of sponge iron i.e. declared goods under clause (iv) of section 14 of the C.S.T. Act, 1956, effected in course of inter-State trade and commerce and to complete the re-assessment within a period of three months from the date of receipt of this order . 5. Learned counsel for the petitioner also contended that pursuant to the order passed by the Assistant Commissioner of Sales Tax under Annexure-5, reassessment was made under Section 12 of the O.S.T. Act read with Rule 31 of the O.S.T. Rules by the Assessing Officer as at Annexure-6, whereby the Assessing Officer has observed as under: .However, the dealer has able to furnish valid declaration in Form C to the tune of ₹ 6,41,22,435.00 only. Thus, the notional tax @4% is calculated on the said turnover. The dealer has failed to furnish any declaration forms (Form C a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... went in appeal and the first appellate authority by its order dated 29.11.2001 (Annexure- 6-A) set aside the order of assessment and in terms of order passed by the first appellate authority, reassessment was done in Annexure-7. Thereafter, it is admitted by both the parties that the Revenue has not preferred any appeal against the aforesaid order but preferred to proceed against the petitioner under Rule 80 of the O.S.T. Rule and accordingly, notice was issued. Subsequently, an order was passed revising the order of assessment for the year, 1997- 98 thereby reducing the eligible tax exemption limit available to the dealer under I.P.R. 92. According to Mr. Sahoo, learned counsel for the petitioner, no opportunity of hearing was given to the petitioner and in order to substantiate its claim, he draws our attention to various parts of the order dated 11.1.2005 paragraph-2 of which is more relevant. In paragraph-2, the Assistant Commissioner of Sales Tax has observed that notice was issued to the petitioner earlier and its counsel appeared on 30.8.2004 and it did not submit explanation or statement for defence, which was adjourned to 11.1.2005 and on that date, learned counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax but purchased the goods against Form I-D free of tax and that the claim of concessional tax benefit and tax exemption benefit cannot go hand in hand as held by the Hon ble Orissa Sales Tax Tribunal in the case of M/s Luis Packaging Private Limited vrs. State of Orissa in SA No.617 of 2001-02. 7. The main contention of the petitioner is that relying upon the judgment of the Tribunal, a suo motu revision proceeding was initiated by the revisional authority but now the same is reversed by this Court in the case of Luis Packaging Pvt. Ltd.-v- State of Orissa; reported in (2010) 32 VST 481, wherein it has been observed at paragraphs- 14, 15 and 16 as follows: 14. In view of the facts and submissions noted hereinabove and in the light of the case law cited, we are of the considered opinion that when the State Government issues a notification for providing concession in tax, it would be assumed that the Government is well aware of the concessions otherwise available to the dealer under the Act and whatever is given under the notification is over and above what is provided under the statute. In other words, when the benefit under the IPR, 1996 was promulgated with new industries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugated cardboard boxes, i.e., packing materials. b) Hundred percent of the petitioner s buyers were registered dealers whose registration certificates disclosed that they were entitled to purchase packing/packaging materials to be used for packing the goods dealt in by them, subject to tax @4% against form IV. The petitioner was eligible to get benefit under the IPR 1996. c) The petitioner was a new industry and started commercial production after April 1, 1997 and was granted permanent registration certificate on May 14, 1997. It had invested ₹ 26.20 lakhs. d) The petitioner had purchased raw materials either against form IV under the OST Act or against Form C under the CST Act and the said raw materials, from which is manufactured the cardboard boxes and which were used as packing materials by purchasers in packing their goods were subject to tax @4%. e) The finding of the Sales Tax Officer was that a person availing of the benefit of the exemption under one notification could not avail of the benefit of concession coming under another section. According to the Sales Tax Officer, when an assessee claimed exemption as per the IPR 1996 towards purchase of raw mate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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