JUDGMENT
G.B. Patnaik, J.
1. The assessee is the petitioner impugning the order of assessment passed by the Sales Tax Officer, Rourkela Circle, Uditnagar, which has been annexed as annexure-6 to the writ petition.
2. It has been asserted in the writ petition that the petitioner entered into a contract with the Steel Authority of India for electric installation of pre-cooler complex and the total value of the work was Rs. 2,21,090. The petitioner in course of business sent goods to the Stores Officer, Steel Authority of India, and the relevant documents of transportation were made out in favour of the said Stores Officer and bills were raised by the petitioner for the said materials in terms of the conditions of the agreement. He also obtained necessary declaration from the Steel Authority of India under the Central Sales Tax Act in C form and duly submitted the return to the appropriate Sales Tax Officer in Calcutta. Certain articles were issued to the petitioner from the stores of the Steel Authority and the petitioner after making necessary erection and installation returned the excess materials to the Stores Officer. The Sales Tax Officer issued a notice to the petitioner under Section 12(5) of the Orissa Sales Tax Act to which the petitioner objected and ultimately by the impugned order, the Sales Tax Officer without discussing the facts of the case and on an erroneous interpretation of law has assessed the petitioner. According to the petitioner, the assessment is unconstitutional and violative of Articles 266 and 268 of the Constitution.
3. Though an appeal is provided for under the statute, yet the petitioner did not take recourse to the same since he apprehended that the order of assessment has been passed at the behest of the appellate authority.
4. On behalf of the department, no counter-affidavit has been filed and, therefore, the facts as alleged must be taken to have been established. Just before the hearing of this case, an affidavit was filed on behalf of the petitioner indicating therein that for the earlier assessment year, the petitioner had preferred an appeal and the appeal has been allowed in his favour. The short question for consideration is whether the provision of Section 12(5) of the Orissa Sales Tax Act would at all be applicable to the facts and circumstances of the present case. It is too well-settled that if goods are moved through other States to Orissa in pursuance of a prior contract, then the sale in question must be held to be one in the course of inter-State trade and commerce and the jurisdiction to tax is with the officer of the place where the assessee’s place of business is situated. The decision of this Court in the case of Caltex (India) Ltd. v. State of Orissa [1978] 42 STC 21 supports the aforesaid view. It also further reveals from the facts averred in the writ petition that there is no material to treat the assessee-firm as a dealer carrying on business of purchasing and selling in Orissa. In fact, the Assistant Commissioner of Sales Tax on appeal in respect of the preceding year has come to the aforesaid conclusion. Since the assessee is not a dealer in Orissa, the impugned order of assessment cannot be sustained.
5. In the result, therefore, the order of assessment as per annexure-6 is set aside. The assessee is entitled to get back by way of refund the payment already made in pursuance of the interim order of this Court dated 23rd March, 1979. The writ application is accordingly allowed, but in the circumstances, there will be no order as to costs,
L. Rath, J.
6. I agree.