AI Structured Summary
Not yet generated for this judgment
Judgment
B.N. Mahapatra, J.—In this Writ Petition the Petitioner challenges receipt dated 27.11.1998 (Annexure-4) issued by the Sales Tax Officer (Vigilance), Sambalpur [hereinafter referred to as the "STO(V)"] by which collection of tax and penalty has been made from the Petitioner treating said receipt as order of assessment of tax and penalty, and also the Order Dated 20.10.2000 (Annexure-6) passed by the Addl. Commissioner of Commercial Tax, Northern Zone, Orissa, Sambalpur (hereinafter called as the "revisional authority") in Revision Case No. SA-1027/98-99; by which he allowed adjustment of the tax collected by the aforesaid receipt in the quarterly return of the Petitioner but refused to interfere with imposition of penalty.
Petitioner''s case in brief is that it is a registered dealer under the provisions of the Orissa Sales Tax Act, 1947 (hereinafter called, the "OST Act") within the territorial jurisdiction of the Sales Tax Officer, Sambalpur-I Circle, Sambalpur and is engaged in dealing in marble, ceramic titles etc. The Petitioner is also a registered dealer under the provisions of Central Sales Tax Act, 1956 (hereinafter called, the "CST Act").
The Petitioner placed purchase order with one M/s. Classic Minerals at Lalmadri, Rajsamand in the State of Rajasthan for supply of marble slabs of irregular size. These goods were transported in a vehicle bearing registration No. OR-06-A-9877 and on the way the said vehicle was intercepted by the STO M-Opposite Party No. 2. The goods so carried were supported by a cash bill and transport challan. The driver of the vehicle could not produce any statutory waybill in Form-XXXII covering the goods carried in the said vehicle from outside the State of Orissa. The Opposite Party No. 2. levied and collected tax amounting to Rs. 9,600/- and penalty amounting to Rs. 19,200/- aggregating to Rs. 28,800/- from the driver and issued the impugned money receipt against such action. Being aggrieved by such collection of tax and penalty, the Petitioner filed revision before the Revisional authority-Opposite Party No. 1.
Before the revisional authority, the Petitioner contended that that the selling dealer had already collected 4% CST on the sale bill. However, before collection of local tax and penalty no show cause notice had been served on the Petitioner to remove the defect. The Petitioner was not afforded any opportunity to submit the waybill. Since there was no sale of goods, imposition of tax and penalty is not sustainable. The Petitioner further contended that though the total value of the goods was Rs. 28,216, the STO collected tax on the estimated value of Rs. 60,000/- without assigning any reason and also levied penalty twice the amount of tax levied. The revisional authority in his Order Dated 20.10.2000 under Annexure-6 observed that the driver of the vehicle could not produce any statutory waybill in Form-XXXII covering the goods carried in the said vehicle from outside the State of Orissa. On confrontation, the driver of the vehicle explained that neither the consignor nor the consignee had handed over the waybill to him, but he was directed to adopt the bypass road avoiding the check gate at Sohela which he did. The driver of the vehicle opted for payment of tax along with penalty. With the above observation, the revisional authority directed adjustment of the payment of optional tax of Rs. 9,600/- against the admitted tax in the quarterly return. However, he was not inclined to interfere with the imposition of penalty. He also held that the value of the goods has been rightly estimated at Rs. 60,000/- taking into consideration the freight charges, margin of profit and other charges.
The Learned Counsel for the Petitioner vehemently argued that while the goods were in transit and the sale was not completed, levy of tax and penalty is premature. In support of his contention, Learned Counsel for the Petitioner relied on a decision of this Court in Orient Paper & Industries Ltd. and Anr. v. State of Orissa and Ors. (1995) 97 STC 490 (Orissa). He also relied on the decision of this Court in case of Utkal Galvanize v. Commissioner of Sales Tax and Ors. (1997) 104 STC 222 and contended that the dealer being a registered dealer no tax should have been levied while the goods were in transit. He further contended that Opposite Party No. 2 is an officer under the authority of the Director General of Police in the Home Department of the State and therefore he is not empowered to collect tax and penalty from the Petitioner. In support of his submission he relied upon the Judgment of this Court reported in Dutta Traders v. Sales Tax Officer, Vigilance, Balasore Circle and Ors. (2000) 120 STC 294 (Orissa). His further grievance is that no opportunity was given to the Petitioner to remove the defect.
Per contra, Learned Counsel appearing on behalf of the Revenue supported the order of the revisional authority.
In view of the rival contentions of the respective parties, the following questions fall for consideration by this Court:
i) Whether there can be any levy of tax and penalty on the goods which are in transit without any waybill and entered inside the State avoiding the border check gate?
ii) Whether the STO(V) who collected tax and penalty from the Petitioner under receipt No. 83753 dated 27.11.1998 is competent to collect such tax and penalty?
The first contention of the Petitioner is that since the goods were in transit and no sale has been completed, the State has no power to levy tax on such goods. In support of his contention, he relied on the decision of this Court in the case of Orient Paper Industries Ltd. & Ors. (supra). There is no dispute that the incidence of tax arises only when there is a complete sale. However, for achieving the object of sealing the loophole of avoidance of sales tax by unscrupulous dealers, measures have been taken by different States. Provisions are made in the Local Sales Tax Acts and Rules to establish check posts to put check on clandestine activities and attempt to evade tax. Provisions have also been made to intercept the vehicle carrying goods while in transit and to levy penalty and in some appropriate cases both tax and penalty where it is found that goods are carried clandestinely to evade tax. Establishment of check gate and inspection of goods while in transit and imposition of penalty in case of infringement of statutory provisions have been held to be valid by the Hon''ble Supreme Court and High Courts. The Hon''ble Supreme Court in the case of ABC Limited v. State of Assam and Ors. (2005) 142 STC 88 held:
...In our view, u/s 42 of the Act, it is an obligation on every clearing, booking or forwarding agent or any other person transporting goods who during the course of its business handles documents of titles to the goods for or on behalf of any dealer or person holding certificates u/s 14 of the said Act to furnish to the prescribed authority true and complete accounts, register, documents etc. The said Section also provides for levy of penalty at the rate of three times of tax calculated on the value of the goods in respect of which no particulars or information have been furnished u/s 42(1) of the Act or no cash memo or challan has been produced before the competent authority u/s 42(3) or Rs. 1000 whichever is greater. The said Section empowers the appointed authority to enter and search any place of business of any dealer if he has reason to believe that any dealer is attempting to evade tax or that any person transporting goods for any other person who has kept his accounts in such a manner as is likely to cause evasion of tax. As per the accepted norms of taxation the jurisdiction whatever is ancillary or subsidiary provision necessary for achieving the object of a tax statute is covered by entry 54 of List II of the Seventh schedule to the Constitution of India. The entries in the legislative List have a very wide meaning and scope and should have a broad interpretation so as to-make provisions in the Act workable and in the interest of revenue. The obligation imposed upon the transporters u/s s 42 and 44 of the Act is also a part of such preventive measures against any evasion of taxes and the same should not be read in a narrow sense....
Hon''ble Supreme Court in the case of Sodhi Transport Company v. State of Uttar Pradesh (1986) 62 STC 381 held that establishment of check post and inspection of goods in transit are legally valid legislations. This Court in the case of Indian Charge Chrome Ltd. v. State of Orissa (1994) 92 STC 294 considered the constitutional validity of the Orissa Sales Tax Act as well as Rules 94 and 94-A of the Orissa Sales Tax Rules and held that Section 16-A read with Rules 94 and 94-A of the Orissa Sales Tax Rules are regulatory measures merely to check evasion of tax and the interruption caused to the moving vehicles for the purpose of checking whether tax is being evaded or not. The provisions do not offend Article 301 or Article 19(1)(g) of the Constitution of India.
This Court in the case of Kamal Kumar Goyal v. State of Orissa (1975) 35 STC 343 held that Section 16-A of the Act and Rule 94 of the Orissa Sales Tax Rules 1947, are within the legislative competency of State legislature under Entry 54 of List II of Seventh Schedule of the Constitution and are intra vires.
The Allahabad High Court in Rama Transport Co. (P) Ltd. v. State of Uttar Pradesh (1957) 8 STC 725 held that neither the erection of check post nor the provisions relating to way bill is an interference with inter-State trade and the provisions are therefore not inconsistent with Article 304 of the Constitution.
In the case of Orient Paper and Industries (supra) relied on by the Petitioner the dealer was registered under the OST Act and the goods transported by the vehicle from outside the State into the State were covered by statutory way bills. The documents relating to the goods carried in the vehicle were tendered to the Officer in-charge of the check gate for verification. Only some defects were pointed out in the way bill. In that circumstance, this Court held that once the way bill is found free from being defective and is complete, question of detention of goods can arise only if there be evasion of tax. In that context, the Court further held that the question of evasion arises once the transaction has become taxable which would be when there has been either a sale or purchase. In instant case, the goods were purchased from outside the State and were transported to Petitioner''s place of business. On the way when the said vehicle was intercepted by the STO(V) it was found that the goods carried in the vehicle were not covered by statutory way bill and the vehicle entered inside the State of Orissa crossing the State border avoiding border check gate infringing the statutory provisions. Thus, the case of the Petitioner is different from that case and the principles decided in that case has no application to the case of the Petitioner. The principle decided in Orient Paper Mills'' Case (supra) is applicable to the bona fide dealers transporting goods following the procedure of law. It Is not applicable to a dealer like the Petitioner who was transporting goods infringing the statutory provisions.
In the case of Utkal Galvanize (supra) the Petitioner was a dealer registered under the Orissa Saleis Tax Act, 1947 and the Central Sales Tax Act, 1956. The Petitioner was transporting an excavator purchased in the process of inter-State trade on the strength of declaration in Form- ''C''. The vehicle carrying the article in question was detained by the Check-post Officer, who wanted certain particulars and rectification of the way bill. Though the Check-post Officer accepted that the Petitioner therein was a registered dealer, and was entitled to purchase machinery, he held that an excavator would not be treated as machinery as it had a separate specific identity of its own. Taking the view that there had been an attempt and evasion of tax, he directed payment of tax of Rs. 2,02,960 in lieu of confiscation.
In that situation, this Court held that at the stage of scrutiny of way bill elaborateness of regular assessment did not exist. When exercising powers u/s 16-A of the OST Act read with Rule 94 of the Sales Tax Rules, there was no scope for such analysis and where controversial issues are involved, it would not be appropriate for the Check-post Officer to delve into the aspect. Such controversies should be left to be determined and adjudicated by the Sales Tax officer under whose jurisdiction the concerned purchaser was registered as registered dealer. The order directing payment of tax was not maintainable. Here in the case of Utkal Galvanize (supra) also the dealer was a registered dealer and tendered documents including way bill to the officer in-charge of the check gate for his verification as provided in the statute. The Petitioner in its case, as stated above, violating the provisions of Sales Tax statute crossed the border avoiding border check gate and the goods carried in the vehicle were not covered by way bill. Thus the fact of the Petitioner''s case is completely distinguishable from the facts of that case.
It may also be pertinent to know the provisions contained in the OST Act and OST Rules with regard to establishment of check point and other regulatory measures to check evasion of tax. Section 16-A of the OST Act provides for establishment of check post or barrier and inspection of goods while in transit. Section 16-AA provides regulatory measures for transport of goods through Orissa. Section 16-B deals with restriction on movement of goods. Section 16-C prescribes imposition of penalty for contravention of Sections 16-A and 16-B. Section 16-D deals with provision regarding production and inspection of accounts and documents in certain cases. In the OST Rules, Rule 94 prescribes for setting up of check post or erection of barrier or both at such place or places in the State as may be specified by the notification of the State Government. It casts obligation on the person in charge of the vehicle or boat to stop the vehicle at the check post or barrier and keep it stationary as long as it is required by the Officer of Check post or barrier and allow examination of goods in the vehicle or boat and inspection of all the records connected with goods in vehicle or boat including the way bill in Form- XXXII. Rule 94(3)(c) provides how issue and use of way bill shall be regulated. Rule 94(3)(f) provides that a person consigning goods from outside State to dealer belonging to a State will obtain way bill from the consignee inside the State. Rule 94(3)(g) provides that the driver or the person in charge of the goods and vehicle or boat shall carry the requisite way bill in triplicate in respect of each consignee and shall tender the original and the duplicate copy of the way bill to the Officer in charge of the check post or barrier through which the goods vehicle first passes on its way. It also provides that in case a goods vehicle does not pass through a check post or barrier and is checked by an Officer not below the rank of Sales Tax Officer on the way the original copy of the way bill shall be tendered to such officer. It further provides that in case a vehicle or boat has not passed through a check post or barrier has not been checked by an officer not below the rank of a Sales Tax Officer, the original copies of the way bill forms used during a month along with statements of account shall be submitted to the Sales Tax Officer of the concerned Circle by last day of the succeeding month. This provision further provides in case on examination and inspection of goods if the Officer in charge of the check post or barrier finds that the goods are not fully covered by the Way bill Form XXXII and that way bill is incomplete or defective or that there is evasion of tax or apprehends for reasons to be recorded in writing there is likelihood of evasion of tax in respect of the goods carried in the vehicle or boat he shall in order to prevent or check evasion of tax Serve on the owner of the goods or any person in his behalf a notice in Form No. VI B giving an opportunity to rectify the defects or omission, if any, or an option to pay such amount as may be indicated by the officer in-charge of the check post or barrier. If the owner of the goods or any person on behalf of such owner fails to pay the tax the officer in charge of the check Post or barrier shall order the unloading of goods seized and confiscate them after following the procedure contained in the said Rule. Rule 94-A provides for inspection of goods while in transit at any place other than check post or barrier. The driver or any other person in charge of a goods vehicle or boat shall stop on demand by an officer of the department not below the rank of an Assistant Sales Tax Officer and keep it stationary as long as it is required and allow examination of the goods in the vehicle or the boat and inspection of all the records connected with the goods in the vehicle or boat. If on such inspection, such officer has reason to believe that there has been an evasion of tax in respect of goods carried on in such vehicle or boat, such officer may order their unloading and seizure and confiscate after following the procedure in sub-rule (5) of Rule 94. The procedure laid down in Rule 94 shall apply to the disposal of goods confiscated under sub-rule (2).
Rule 94-B provides for restriction of movement of goods. It provides that no person shall transfer by road, river, craft or Mulia from railway station, steamer station, airport, post office or from any other place whatsoever notified in this behalf by the State Government, any consignment of such goods exceeding such quantity, as may be specified in the notification u/s 16-B except in accordance with certain conditions. Sub-rule (2) of Rule 94-B provides that any Sales Tax Authority having jurisdiction for the purpose of verifying whether any goods are being transported in contravention of the provisions of Sub-section (1) of Section 16-B may intercept, detain and search any road vehicle or river craft or any load carried by person, the driver or any other person in charge of the vehicle or river craft or the person carrying the load shall allow the Sales Tax Authority to search the goods carried in the vehicle or river craft or the load and inspect all records relating to the goods carried. Such authority may intercept and detain any road vehicle or river craft or any load carried by person as long as may reasonably be necessary to complete the search of the road vehicle or the river craft or the load. Rule 94-C provides that where a vehicle carrying goods coming from any place outside the State and bound for any other place outside the State, passes through the State of Orissa, the driver or any person in-charge of such vehicle shall obtain waybill in Form-XXXII prescribed under Rule-94(3) of the Said Rules containing detailed particulars of transit pass from the officer in-charge of the first check- post/barrier duly authenticated with the official seal and signature after its entry into the State. The same shall be produced in triplicate before the officer in-charge of the check-post after dully filled in for obtaining a transit pass which will be delivered before his exit from the State. This Rule also prescribes for imposition of penalty in case of violation of the said Rules and in the event of failure to pay the tax and penalty the officer in-charge of the check-post/barrier shall order to confiscate the goods.
The Petitioner herein has not challenged the constitutional validity of any of the above provisions.
In the case at hand, the Petitioner is a registered dealer under the OST Act and goods in question were purchased by the Petitioner from outside the State. The Seller consigning the goods from outside the State to the Petitioner is obliged under Rule 94(3)(f) to obtain the way bill form from the consignee-Petitioner. Under Rule 94(3)(g) the driver or the person in-charge of the goods vehicle is under statutory obligation to carry the requisite way bills in triplicate in respect of the consignment and tender the original and duplicate copy of the way bill to the Officer in-charge of check post through which the goods vehicle first passes. In this case, the vehicle carrying goods avoided the border check gate, i.e., Shohela check-gate and entered inside the State of Orissa through a bypass way. Thereafter, the vehicle was intercepted by the STO (V) en-route and on inspection it was found that the goods were not covered by the way bill No. XXXII. The manner in which the goods were carried and crossed the border avoiding border check gate clearly shows that the goods were carried with a motive to evade legitimate tax due to the State. Had the intention of the parties been clear, the vehicle would have reported at the border check gate at the entry at Shohela as required under Rule 94(3)(g) which has not been done in this case. The very fact that the border check gate has been avoided and bypass road has been availed and goods were not covered by Statutory Way Bill-XXXII clearly speaks of the intention to evade payment of tax.
Hon''ble Supreme Court in the case of State of Rajasthan v. B.P. Metals (2002) 124 STC 611 held that legislature is competent to specify a fixed rate of penalty and not to give any discretion in lowering the rate of penalty. The penalty so fixed Is meant to be a deterrent and there is nothing wrong in it.
In view of above clear factual position, we are of the considered view that the STO(V) is fully justified in imposing penalty as provided u/s 16-C of the OST Act in respect of the goods carried in the vehicle without being covered by the way bill and entered inside the State avoiding border check gate. It is found that the STO besides levying penalty of Rs. 19,200/- has also levied tax of Rs. 9,600/-. The revisional authority has rightly allowed adjustment of such tax in the quarterly return, the Appellant being a registered dealer under the OST Act. Further since the goods in question were not covered by way bill, there was no occasion for the STO(V) to allow opportunity to rectify the defect.
Learned Counsel vehemently argued that the STO (Vigilance) Unit, Sambalpur was not empowered under the Sales Tax Act to levy and collect tax or penalty. Strong reliance has been placed on the decision of this Court in the case of Dutta Traders (supra). In that case, this Court held that the STO (Vigilance) who has been functioning under the Inspector General of Police (Vigilance) was not competent as he was not under the control and supervision of the Commissioner of Commercial Taxes for the time being. Therefore, realization of tax and penalty was without jurisdiction. This decision of the High Court has been reversed by the Hon''ble Supreme Court in the case of Sales Tax Officer and Ors. v. Dutta Traders (2007) 9 VST 425 (SC) wherein the Hon''ble Supreme Court held that the Sales Tax Officer (Vigilance) is entitled to assess and recover the tax. In the above view of the Hon''ble Supreme Court we are of the view that the Sales Tax Officer (Vigilance) has rightly levied and recovered the penalty from the Petitioner.
In view of the above, we find that the Writ Petition is devoid of any merit and thus accordingly dismissed. No costs.
B.S. Chauhan, C.J.
I agree.