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TMI Blog2022 (4) TMI 725X X X X Extracts X X X X X X X X Extracts X X X X ..... 2009 or @ 1 % in view of the Industrial Policy of the State? The question was answered in favour of the Assessee and it was held that the Assessee would be entitled to concessional rate of CST @ 1%. In coming to that conclusion, it was held that the State Government was bound by the policy decision taken by the Council of Ministers and duly notified by the Department concerned, namely, the Department of Industries. It was held that the State Government cannot speak into two voices . The impugned orders of the Tribunal for both years are accordingly set aside and the corresponding orders of the ACST are restored to file - Revision petition disposed off. - STREV Nos. 21 of 2008 and 30 of 2008 - - - Dated:- 11-4-2022 - S. MURALIDHAR CHIEF JUSTICE AND R.K. PATTANAIK, JUDGE Advocates, appeared in these cases: For Petitioner(s) : Mr. R.P. Kar, Advocate For Opposite Parties : Mr. S.S. Padhy Additional Standing Counsel JUDGMENT Dr. S. Muralidhar, CJ. 1. These two revision petitions involving the same assessee arise out of a common set of facts and give rise to the same questions of law but for two different years i.e. 1985-86 as far as STREV No.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 6 of the OST Act against declaration in Form 1A were disallowed. This followed the pattern of the year 1982-83 where the assessment was reopened under Section 12(8) of the OST Act. The purchase value of the paper amounting to ₹ 1,84,075.08 was added to the taxable turnover (TTO) by the STO and tax @8% was levied. The gross turn over (GTO) and the TTO were enhanced by ₹ 20,000/- respectively on the allegations of suppression. Extra tax of ₹ 16,406/- and penalty of ₹ 200/- were levied by the STO. The total tax and penalty demanded worked out to ₹ 16,606/- under the OST Act. As far as 1985-86 is concerned, the corresponding tax demand was ₹ 1,14,251/-. 7. The corresponding appeals filed by the Petitioner before the Assistant Commissioner of Sales Tax (ACST), Cuttack-I Bench, Cuttack (ACST) was registered for the year 1982-33 as AA 1972- 1973/CUIW/87-88. As far as the year 1985-86 is concerned, the corresponding appeals were AA 1974 and 1975/CUIW/87-88. 8. By two separate orders dated 14th February, 1991 the ACST allowed both sets of appeals. Following the decision of the Tribunal in Sahoo Traders v. State of Odisha , the ACST concluded th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... axing the Petitioner for alleged change in use of the goods purchased by using Form IA by the purchasing dealer. He submitted that if it was established that the goods purchased on the strength of Form 1A were put to a different use in contravention of the declaration in Form 34, then it would be open to the Department to appropriately levy tax on the purchasing registered dealer. 12. Mr. Kar submitted that Section 5 (2)(A)(a)(ii) of the OST Act was not a charging section and the declaration Form 34 is also not an independent charging clause. The only sections of the OST Act which create a liability on the dealer to pay tax are Sections 3-B, 5, 6 7 and 8. If the interpretation placed on Section 5 (2)(A)(a)(ii) of the OST Act by this Court in State of Odisha v. M/s. Sahoo Traders (supra) is accepted as correct then it would create another liability which was impermissible under the OST Act. 13. On the other hand, Mr. S.S. Padhy, learned Additional Standing Counsel for the Opposite Party (Revenue) referred to the exact wording of Form 34 and submitted that any sales made in contravention of the declaration contained therein would attract contravention of the 2nd proviso to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taxable turn over means that part of dealer s gross turn over during any period which remained after deducting thereform:- (a) his turn over during that period on (i) the sale of any goods notified from time to time as tax free under section 6 of the packing materials if any, in respect of such goods. (ii) Sales to a registered dealer of goods specified in the purchasing dealers certificate or registration for resale by him in Orissa in a manner that such resale shall be subject to levy of tax under this Act, and on sale to registered dealer of, containers or other materials for the packing of such goods. Provided that for the purpose of ascertaining the deductions under this item the dealer selling the deductions under this item the dealer selling the goods shall furnish to the prescribed authority in the prescribed manner, a declaration in the prescribed for obtained from the prescribed authority within the prescribed time or within such further time as that authority may after sufficient cause permit: Provided further that where any goods specified in the certificate of registration are purchased by a registered dealers free of tax after furnishing a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te and the same shall be obtained from the Sales Tax Officer within whose jurisdiction the dealer is registered on application affixed with a fee of five rupees for every twenty-five blank declaration forms. The declaration forms shall be duly filled in and signed by the dealer or his authorized agent. The portion marked Original shall be made over to the selling dealer and the portion marked Duplicate shall be made over to the Sales Tax Officer who issued the forms to the dealer. No second or subsequent supply of declaration forms shall be made unless a true account of the forms last supplied is furnished. All unused, obsolete and invalid declaration forms shall be surrendered to the concerned Sales Tax Officer. In case of loss, theft or destruction of any form and other matters incidental thereto the same shall be notified in the Official Gazette. 19. Since purchase of the goods by the present Petitioner was by using Form 34 that is also relevant for the purpose of the present case. The declaration furnished in the said form is what is really important and it reads as under: Certified that the goods ordered in my/our purchase Order No........ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the benefit of exemption is to be denied to it. The selling dealer cannot be faulted if there is any diversion or change of user. In this connection, the fifth proviso to sub-section (1) of section 5 of the Act is relevant, and has application. 21. The expression 'levy of tax' occurring in the declaration in Form 34 has to be correctly understood. It is not the same as 'collection of tax'. In Peekay Rerolling Mills Pvt. Ltd. v. Asst. Commissioner (supra), the Supreme Court drew the proper distinction between the two expressions by referring to the decisions in Asst. Collector of Central Excise, Calcutta Division v. National Tobacco Company of India Ltd. AIR 1972 SC 2563, wherein it is observed as under: 19. The term levy appears to us to be wider in its import than the term assessment . It may include both imposition of a tax as well as assessment. The term imposition is gene- rally used for the, levy of a tax or duty by legislative provision indicating the subject matter of the tax and the rates at which it has to be taxed. The term assessment , on the other hand, is generally used in this country for the actual procedure adopted in fixin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the State Act for the same would violate the condition of single-stage tax u/s 15 of the Central Act. 24. The same approach has been adopted in State of Punjab v. Perfect Synthetics (supra). In the said case, the question that arose was as under: 4. Whether the assessee is entitled to deduction, from gross turnover, the purchase value of the raw material which the assessee bought from exempted units? 25. The case of the Department was that the Assessee is not entitled to such deduction as the said purchase value is not subjected to tax at the first stage of sale as the raw materials were purchased from the exempted units. According to the Department, only the purchase value which stood subjected to tax at the first stage of sale under Section 5(1)(A) of the Punjab General Sales Tax Act, 1948 would be entitled to deduction under Rule 29(12) of the Punjab General Sales Tax (Deferment and Exemption) Rules, 1991. Negativing the said plea, the Supreme Court held as under: 13. We find no merit in the said argument of the Department. In this connection, we have to construe the scheme of the 1948 Act. As stated above, Section 4 is the charging section whereas Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, having been issued by the Department concerned, viz., Department of Industries, thereafter, the Excise and Taxation Department cannot take a different stand. What is given by the right hand cannot be taken by the left hand. The Government shall speak only in one voice. It has only one policy. The departments are to implement the Government policy and not their own policy. Once the Council of Ministers has taken a decision to extend the 2004 Industrial Policy and extend tax concession beyond 31.03.2009, merely because the Excise and Taxation Department took some time to issue the notification, it cannot be held that the eligible units are not entitled to the concession till the Department issued the notification. It has to be noted that the Finance Department of the State Government had concurred with the proposal of the Department of Industries to extend the tax concession beyond 31.03.2009 till 31.03.2013 and the Council of Ministers had accordingly taken a decision also. No doubt, the statutory notification issued by the Excise and Taxation Department under Section 8(5)(b) of the Act on 18.06.2009 has stated that the eligible units will be entitled to the concession with imme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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