M/s Maa Santoshi Bhandar vs Sales Tax Officer, Unified Check Gate, Jamsolaghat And Others

The challenge in the present petition is to an order dated 2nd June 2005 passed by the Sales Tax Officer (STO), Unified Check Gate, Jamsolaghat, District-Mayurbhanj levying a penalty of Rs.88,320/- under Section 74 (8) of the Orissa Value Added Tax Act, 2004 (OVAT Act) on the ground that the goods which were being transported by way of inter-State sale from Jajpur to Patna were not accompanied by the requisite documents.

Although the order is a revisable one, this Court had entertained the writ petition over 16 years ago and by an order dated 9th June 2005 directed that if the Petitioner deposited Rs.45,000/- within two weeks, then the goods loaded in the vehicle shall be released.

Mr. Sahoo, learned Senior Advocate for the Petitioner points out that the Petitioner is the sole proprietor of the concern which in fact dispatched the goods by way of inter-State sale to Patna. From the wording of Section 74 (8) read with Section 74 (2)(b)(c)(d) and (e), the liability if any for paying such penalty, even assuming that it could be leviable in respect of an inter-State sale, was only on the "driver or person in charge of every vehicle or carrier of goods in transit" and not the owner of the goods which were being dispatched.

Although Mr. Padhy, learned Additional Standing Counsel raises the point of alternative remedy, this Court is not inclined sixteen years after the admission of the writ petition to relegate the Petitioner to the alternative remedy since there is a conditional stay operating in favour of the Petitioner during this period.

Further, the Court is of the view that there is a jurisdictional issue involved here inasmuch as the Department is unable to dispute the fact that the impugned order levies the penalty on the owner of the goods whereas Section 74 (8) read with Section 74

(2) is very clear that the liability for paying such penalty would be on the "driver or person in charge of every vehicles or carrier of goods........."

With these facts not being able to be disputed by the Department, the impugned order is hereby quashed. It will be open to the Petitioner to seek from the Department return of the sum deposited pursuant to the interim order dated 9th June 2005 in accordance with law.

The writ petition is allowed in the above terms.

An urgent certified copy of this order be issued as per rules.

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