{"id":222806,"date":"2010-07-29T00:00:00","date_gmt":"2010-07-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-srg-iron-steel-p-ltd-vs-unknown-on-29-july-2010"},"modified":"2018-07-20T09:03:01","modified_gmt":"2018-07-20T03:33:01","slug":"ms-srg-iron-steel-p-ltd-vs-unknown-on-29-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-srg-iron-steel-p-ltd-vs-unknown-on-29-july-2010","title":{"rendered":"M\/S. Srg Iron & Steel (P) Ltd vs Unknown on 29 July, 2010"},"content":{"rendered":"
Orissa High Court<\/div>\n
M\/S. Srg Iron & Steel (P) Ltd vs Unknown on 29 July, 2010<\/div>\n
                                  B.P.DAS, J & B.N.MAHAPATRA, J.\n<\/pre>\n
            W.P.(C) NO.5588 OF 2004 (Decided on 29.7.2010)<\/p>\n
M\/S. SRG IRON & STEEL (P) LTD.,                        ………        Petitioner
\nJAMSHEDPUR.\n<\/p>\n
                                       .Vrs.<\/p>\n
\n\n\nCOMMISSIONER OF COMMERCIAL\nTAXES, CUTTACK & ORS.                                 ........... Opp.Parties.\n\n\n<\/pre>\n
ORISSA SALES TAX ACT, 1947 (ACT NO.14 OF 1947) – SEC.16-AA r\/w Rule 94-C of the OST
\nRules 1947.\n<\/p>\n
       For Petitioners – M\/s. A.K.Mohanty.\n<\/p>\n
       For Opp.Parties – Mr. M.S.Raman,
\n                          Addl. Standing Counsel (Revenue)<\/p>\n
B.N.MAHAPATRA, J                    This writ petition has been filed with a prayer for quashing the order
\ndated 11.09.2009 (Annexure-1) passed by the Sales Tax Officer, Unified Check Gate, Girisola,
\nGanjam, opposite party No.2 (here-in-after mentioned as “S.T.O.”) in which the S.T.O. levied
\nRs.4,51,693\/- towards tax, surcharge and penalty under the Orissa Sales Tax Act, 1947 (for short
\n“O.S.T. Act”) and Rs.55,536\/- towards tax and penalty under the Orissa Entry Tax Act, 1999 (for short
\n“O.E.T. Act”) as well as order dated 08.10.2003 (Annexure-3) passed in PU 224\/2003-04 by the
\nAdditional Commissioner of Sales Tax, South Zone, Berhampur (for short “Addl. Commissioner”)
\ndeclining to interfere with the order of the S.T.O.\n<\/p>\n
2.       Bereft of unnecessary details, the facts and circumstances giving rise to the present writ
\npetition are that the petitioner is a company registered under the Companies Act, 1956 having
\nits registered office in the district of Singhbhum (East) of Jharkhand State. It carries its business of
\nmanufacturing steel and iron rods. The petitioner for its manufacturing process imports white
\nkerosene oil from M\/s. Annapurna Niwas Pvt. Ltd., Flat No. B-5, Door No. 31-32, 81 Sri Ram Krishna
\nArcade, Daba Gardens, Visakhapatnam, Andhra Pradesh, opposite party No.3. On 06.08.2003, the
\npetitioner while transporting 20 KL of super white kerosene from Visakhapatnam, Andhra Pradesh to
\nJamshedpur, Jharkhand by a tanker bearing registration No. WB-03-A-9467 under Invoice No.547
\ndated 05.08.2003 valued Rs.2,70,400\/-, the same was intercepted at Girisola Unified Check Gate on
\n06.08.2003. The S.T.O. served show cause notices dated 06.08.2003, 11.08.2003 and 21.08.2003
\nupon the driver of the tanker to show cause as to why penalty in addition to tax should not be levied
\nfor selling the goods carried in the tanker within the State of Orissa in violation of the declaration
\nfurnished under Section 16-AA of the Orissa Sales Tax Act, 1947 on different occasions. In pursuance
\nto the said notices, the petitioner appeared before opposite party No.2 on 19.08.2003 and sought for
\n one month’s time to settle the matter by producing all the documents. The S.T.O. allowed two days
\ntime. Thereafter on 23.08.2003 a telegram was received at the Girisola Unified Check Gate requesting
\ntime upto 28.08.2003. Nobody appeared on 28.08.2003. After waiting for some more days the S.T.O.
\npassed the impugned order under Annexure-1 raising the aforementioned tax, surcharge and penalty.\n<\/p>\n
        Being dissatisfied with the said order of the S.T.O., the petitioner filed a revision petition before
\nthe learned Addl. Commissioner and the later vide order passed under Annexure-3 did not inclined to
\ninterfere with the order of the learned S.T.O. Hence, this writ petition.\n<\/p>\n
3.       Mr.A.K.Mohanty, learned counsel appearing for the petitioner submits that the petitioner is a
\nregistered dealer in the State of Jharkhand and all the consignments were received by it with their seal
\nand signatures on the body of challan-cum-invoice. In spite of the same, O.P. No.2-Sales Tax Officer
\non a presumption held that on seven different occasions in violation of the declaration furnished under
\nSection 16-AA of the Orissa Sales Tax Act, white kerosene valued Rs.18,51,200\/- carried in the
\nparticular tanker was sold within the State of Orissa. There was no evidence on record to show that
\nthe Driver of the tanker sold white kerosene on seven occasions within the State of Orissa. The
\npetitioner never complained non-receipt of consignments, rather produced receipts of goods within a
\nstipulated period. Taking the advantage of innocence of the Driver, opposite party No.2 prepared a
\nstatement and forcibly obtained his signature. Since, pursuant to the show cause notice, the Driver of
\nthe tanker had explained in writing that goods were received outside the State as per the
\nundertaking given at the entry gate, the presumption of violation of the declaration furnished at the
\nentry point is without any basis. Without making proper investigation levy of tax, surcharge and penalty
\nis not justified. Therefore, the orders passed under Annexures-1 and 3 are not sustainable in the eye
\nof law.\n<\/p>\n
4.      On being noticed, O.P. No.3, the consigner filed counter affidavit repudiating the allegations
\nmade by the Sales Tax Officer (O.P. No.2) in his order. It is stated that O.P. No.3 is the licensed
\nimporter of super kerosene oil and the petitioner used to purchase imported super kerosene from it by
\nplacing purchase orders. It (O.P. No.3) being the consignor in the transaction had no authority or
\nbusiness to enquire into the manner of utilization of the goods sold on receipt of cost of goods along
\nwith CST and after loading the tanker and dispatching the same. It had also deposited tax realized in
\nthe transactions with the appropriate taxing authority. Thus, the O.P. No.3 cannot be made liable for
\nany alleged selling of kerosene somewhere in the midway and the observation made against it in the
\nimpugned order is entirely baseless and damages its business reputation and good will. Moreover, as
\nO.P. No.3 was not given any opportunity of hearing, the observation made under Annexures-1 and 3
\nare not sustainable.\n<\/p>\n
5.       Mr. Raman, learned counsel appearing on behalf of the opp. parties 1 and 2 supporting the
\norders of the STO and the Addl. Commissioner passed under Annexures-1 and 3 respectively,
\nvehemently argued that the O.P. No.2 has rightly imposed tax, surcharge and penalty and there is no
\ninfirmity in his order as well as in the order of the Addl. Commissioner.\n<\/p>\n
6.     The only question that falls for consideration by this Court is whether, on the facts and in the
\ncircumstances of the case, the S.T.O. is justified in imposing tax, surcharge and penalty amounting to
\nRs.4,51,693\/- under the O.S.T. Act and tax and penalty of Rs.55,536\/- under the O.E.T. Act totaling to
\nRs.5,07,229\/- for the alleged violation of declaration given in transit passes issued at the Unified
\nCheck Gate, Girisola.\n<\/p>\n
7.     To resolve the issue under the O.S.T. Act, it is necessary to know what is contemplated under
\nSection 16-AA of the O.S.T. Act and Rule 94-C of the Orissa Sales Tax Rules (for short “O.S.T.
\nRules”). The provisions of Section 16-AA of the O.S.T. Act and Rule 94-C of the O.S.T. Rules are
\nreproduced below:\n<\/p>\n
         Section 16-AA. “Regulatory measures for transport of goods through Orissa\n<\/p><\/blockquote>\n
         —\n<\/p><\/blockquote>\n
          (1)    When a vehicle or boat carrying goods, coming from any place outside the State and
\n         bound for any other place outside the State, passes through the State, the driver or other
\n         person in-charge of such vehicle or boat shall —<\/p><\/blockquote>\n
\n         (a)      declare in such form and manner before the officer-in-charge of the first check-post or\n         barrier after his entry into the State that the\n         SRG IRON -V- COMMISSIONER OF COMMERCIAL TAXES,           [B.N.MAHAPATRA, J ]\n\n<\/pre>\n
            goods under transport shall not be unloaded, delivered or sold in the State;\n<\/p><\/blockquote>\n
            (b)      obtain, in the prescribed manner, a transit pass in such form containing such
\n            particulars as may be prescribed from the said officer; and\n<\/p><\/blockquote>\n
            (c)     deliver the transit pass so obtained to the officer-in-charge of the last check-post or
\n            barrier before his exit from the State, failing which it shall be presumed that the goods carried
\n            thereby have been sold within the State by the owner or person-in-charge of the vehicle or
\n            boat:\n<\/p><\/blockquote>\n
Provided that where the goods carried by such vehicle or boat are, after their entry into the State,
\ntransported outside the State by any other vehicle, boat or conveyance, the onus of proving that the
\ngoods have actually been moved out of the State shall be on the owner or person-in-charge of the
\nvehicle or boat.\n<\/p>\n
Explanation – In a case where a vehicle or boat owned by a person is hired for transportation of
\ngoods by any other person, the hirer of that vehicle or boat shall, for the purpose of this Section, be
\ndeemed to be the owner of the vehicle or boat, as the case may be.\n<\/p>\n
(2)       The officer-in-charge of any check-post or barrier or any other officer, not below the rank of a
\nSales Tax Officer, duly authorized by the Commissioner, may detain any vehicle or boat and keep it
\nstationary as long as may reasonably be necessary for examination of the contents therein and the
\nrecords relating to the goods under transport by such vehicle or boat, and seize the same if —\n<\/p>\n
(a)     it is presumed under sub-section (1) that the goods carried by the vehicle or boat, as the case
\nmay be, has been sold in the State; or\n<\/p>\n
(b)     the driver or the other person-in-charge of the vehicle or boat, as the case may be, fails,
\nwithout reasonable cause, to produce or deliver the transit pass required under sub-section (1); or\n<\/p>\n
(c)    he has reason to believe that the goods carried by the vehicle or boat, as the case may be, has
\nbeen unloaded, delivered or sold within the State in contravention of the declaration furnished under
\nsub-section (1),
\nhe may direct the driver or the other person-in-charge of the vehicle or boat, as the case may be, to
\npay within a specified period, by way of penalty, a sum equivalent to twenty per centum of the value of
\nthe goods under transport by such vehicle or boat, as the case may be, or rupees twenty thousand,
\nwhichever is higher, in addition to tax as otherwise payable under this Act, failing which the
\nofficer may confiscate the goods under transport in the prescribed manner to recover such penalty
\nand tax:\n<\/p>\n
                       Provided that —\n<\/p>\n
(a) before taking any action for confiscation of the goods the officer shall give the driver or the
\nperson-in-charge of the vehicle or boat, as the case may be, an opportunity of being heard and, if
\nnecessary, may make an enquiry in the manner prescribed; and\n<\/p>\n
(b) where the goods under transport are not available at the time of seizure of the vehicle or boat,
\nas the case may be, the officer may detain the vehicle until such penalty and tax are paid.\n<\/p>\n
(3)   Where the goods seized are of a perishable nature they shall be sold in the prescribed
\nmanner.\n<\/p>\n
(4)      Where any goods seized under this Section are sold, the sale-proceeds thereof, after
\ndeduction of the tax including penalty payable under this Section and the expenses of such sale, be
\npaid to the person from whom the goods are seized.\n<\/p>\n
 (5)      No order of penalty shall be made under this Section in respect of goods which are not liable
\nto payment of tax under this Act.”\n<\/p>\n
         Rule 94-C
\n         “Where a vehicle carrying goods intends to transit through Orissa from a place to another
\nplace outside Orissa, the driver or any other person claiming to be in-charge of such vehicle shall
\nproduce before the Officer-in-charge of the entry Check-Post\/barrier a transit pass in Form-XXXII-T in
\ntriplicate, collect the duplicate and triplicate copies duly signed by the said officer and proceed to
\ntransit through the Check-Gate\/barrier mentioned in the transit pass after depositing the duplicate with
\nthe Officer-in-charge of the exit Check-Post\/barrier.\n<\/p>\n
      Explanation – “Transit Pass” duly signed by the officer-in-charge of the check-gate referred to
\n      in this rule shall be deemed to be “Way-Bill” as provided under Section 16-A of the Orissa Sales
\n      Tax Act.]”\n<\/p>\n
                                                  (Underlined for emphasis)<\/p>\n
8.       A conjoint reading of provisions of Section 16-AA of the O.S.T. Act and Rule 94-C of the O.S.T.
\nRules makes it clear that when a vehicle or a boat carrying goods coming from any place outside the
\nState and bound for any other place outside the State, passes through the State, the driver or any
\nother person-in-charge of such vehicle or boat, shall produce before the Officer-in-Charge of the entry
\ncheck-post\/barrier a transit pass in Form-XXXII-T in triplicate containing the declaration that the goods
\nunder transport shall not be unloaded, delivered or sold in the State. The S.T.O. in-charge of the entry
\ncheck-post\/barrier duly signs the transit pass, keeps the original with him hands over the duplicate and
\ntriplicate copies to the driver or any other person claiming to be in-charge of such vehicle. The driver
\nor any other person in-charge of such vehicle or boat shall deliver the triplicate copy of the transit pass
\nobtained from the entry Check Gate to the officer-in-charge of the last check-post\/barrier while the
\nvehicle along with goods leaves the State. The transit pass duly signed by the officer-in-charge of the
\nentry check gate serves the purpose of a ‘way-bill’. Under sub-section (2) of Section 16-AA, the
\nofficer-in-charge of the check-post\/barrier or any other person not below the rank of a Sales Tax
\nOfficer duly authorized by the Commissioner may detain any vehicle or boat and keep it stationary as
\nlong as may reasonably be necessary for examination of the contents therein and the records relating
\nto the goods under transport by such vehicle or boat. They may also seize the same, if it is presumed
\nthat the goods carried by the vehicle or boat has been sold in the State or the driver or any other
\nperson-in-charge of the vehicle or boat, as the case may be, fails, without reasonable cause, to
\nproduce or deliver the transit pass required under sub-section (1); or he has reason to believe that the
\ngoods carried by the vehicle or boat, as the case may be, has been unloaded, delivered or sold within
\nthe State in contravention of the declaration furnished at the entry check gate.\n<\/p>\n
        Thus, if the driver or any other person in-charge of such vehicle or boat fails to deliver the
\ntransit pass obtained from the entry check gate to the officer-in-charge of the last check-post or
\nbarrier before he exits from the State, it shall be presumed that the goods carried thereby have been
\nsold within the State by such person. The officer may also direct the driver or the other person-in-
\ncharge of the vehicle or boat to pay within a specified period, by way of penalty, a sum equivalent to
\ntwenty per centum of the value of the goods under transport by such vehicle or boat, as the case may
\nbe, or rupees twenty thousand, whichever is higher, in addition to tax as leviable on such goods. If
\nthe driver or the person-in-charge of such vehicle or boat fails to pay the tax and penalty imposed, the
\nofficer may confiscate the goods under transport to recover such penalty and tax. Before confiscating
\nthe goods, the officer shall give the driver or any other person-in-charge of the vehicle or boat, an
\nopportunity of being heard, and, if necessary, may make an enquiry in the manner prescribed. Where
\n the goods under transport are not available at the time of seizure of the vehicle or boat, as the case
\nmay be, the officer may detain the vehicle until such penalty and tax are paid. Thus, when a vehicle or
\nboat carrying goods, coming from any place outsidethe State and bound for any other place
\noutside the State, passes through the State, it is obligatory on the part of the driver or any other
\nperson-in-charge of the vehicle or boat to deliver the triplicate copy of the transit pass obtained from
\nthe entry check gate to the officer-in-charge of last check-post\/barrier before the vehicle along with
\ngoods leaves the State. On failure to discharge such obligation it shall be presumed that the goods
\ncarried by the vehicle has been sold within the State and the driver or the person-in-charge of the
\nvehicle or boat shall pay tax and penalty as provided in Section 16-AA of the O.S.T. Act.\n<\/p>\n
9.       In the present case demands have been raised for violation of the declaration made by the
\ndriver of the vehicle bearing registration No.WB-03-A-9467 in the transit passes in several times. On
\n06.08.2003, while the said vehicle reached the Unified Check Gate, Girisola, loaded with 20 KL of
\nsuper white kerosene valued Rs.2,70,400\/-, the S.T.O. issued notices under Section 16-AA of the
\nO.S.T. Act to the driver of the said vehicle for violation of the declaration furnished in seven numbers of
\ntransit passes. Admittedly, in the past the driver or any other person-in-charge of the vehicle No.WB-
\n03-A-9467 had not handed over to the officer-in-charge of the Check Gate at exit point six numbers of
\ntransit passes issued to the driver\/person in-charge of the vehicle by the officer-in-charge of the entry
\ncheck-gate. Thus, the requirement of Section 16-AA of the O.S.T. Act read with Rule 94-C of the
\nO.S.T. Rules was not complied with and for which it was presumed that the goods carried on seven
\noccasions were sold within the State. The fact of non-delivery of transit pass at the exit point is
\nsufficient to establish a prima facie case against the driver\/owner of the vehicle. Needless to say that
\nthe presumption that arose out of non-delivery of the transit pass at the exit point is a rebuttable
\npresumption. It is only where the presumption is successfully rebutted, the authorities concerned are
\nrequired to rely upon the rule of presumption. Under Section 16-AA of the O.S.T. Act, the onus of
\nproving that the goods carried on six occasions were delivered outside the State shall lie on the owner
\nor the person-in-charge of the vehicle. The words contained in Section 16-AA of the O.S.T. Act only
\nrequire the authorities concerned to raise a rebuttal presumption that the goods must have been sold
\nin the State, if the transit pass is not handed over to the officer at the exit check-post\/barrier. Such
\npresumption when drawn against the owner or person-in-charge of the vehicle, he is held to have sold
\nthe goods inside the State of Orissa. The person concerned shall be liable to pay the tax and penalty
\nas prescribed under Section 16-AA of the O.S.T. Act. The case of the petitioner is that due to heavy
\nrush at the exit check-post (the Unified Check-Post, Jamsola) the driver of the vehicle did not hand
\nover the transit pass issued by the entry check-post to the officer-in-charge of the exit check-post
\nbefore passing through the exit gate. However, the petitioner produced copies of delivery-challan-cum-
\ninvoices in which the consignee has acknowledged the receipt of the goods affixing their round rubber
\nseal and contended that all the previous six consignments of Kerosene were actually received by the
\nconsignee outside the State and not sold inside the State of Orissa as presumed by the learned S.T.O.
\nThe Revisional Authority on verification of the case records found that the driver of the vehicle in his
\nstatement dated 11.09.2003 recorded by the learned S.T.O. had categorically stated before the
\nlearned S.T.O. that he was driving the alleged vehicle only for that particular consignment and did not
\nknow anything about the transaction of any consignment by the said vehicle previously. Interestingly,
\nthe same driver has signed all the other previous six delivery challans-cum-Invoices etc. But different
\npersons have signed in the declarations in the Transit Passes bearing Nos.00485, 12953, 08523,
\n21275, 24259, 15344 and 08550 as revealed from the connected records received from the
\ncheckpost. This clearly proves that the acknowledgment receipts produced by the consignee are false
\nand fabricated to escape from a valid charge of clandestine sale inside the State of Orissa with an
\nulterior motive to evade tax. It is also not at all believable that in all the six previous occasions due to
\nheavy rush at the exit check-post at the Unified Check-post, Jamsola, the driver of the vehicle could
\nnot hand over the transit pass issued by the entry check gate to the officer in charge of the exit check
\ngate before passing through the said gate. Moreover, if a statute provides for a thing to be done in a
\nparticular manner, then it has to be done in that manner. In the instant case as stated above, the
\npetitioner has not complied with the statutory requirements.\n<\/p>\n
10.    In the fact situation, levy of tax, surcharge and penalty under the O.S.T. Act under Annexure-1
\n is found to be just and proper.\n<\/p>\n
11.     The issue involved under the O.S.T. Act and O.E.T. Act is same. The provisions contained in
\nSection 16-AA of the O.S.T. Act and Rule 94-C of the O.S.T. Rules are similar to the provisions
\ncontained in Sections 24 and 25 of the O.E.T. Act. Tax and penalty under the O.E.T. Act have been
\nlevied on the similar grounds on which tax and penalty are levied under the O.S.T. Act. For the
\nreasons stated in the foregoing paragraphs, the levy of tax and penalty under the O.E.T. Act is also
\nheld to be valid.\n<\/p>\n
12.    In view of the above, we are not inclined to interfere with the orders passed by the S.T.O. and
\nthe Addl. Commissioner under Annexures-1 and 3 respectively.\n<\/p>\n
13.    In the result the writ petition is dismissed. No order as to costs.\n<\/p>\n
                                                      Writ petition dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Orissa High Court M\/S. Srg Iron & Steel (P) Ltd vs Unknown on 29 July, 2010 B.P.DAS, J & B.N.MAHAPATRA, J. W.P.(C) NO.5588 OF 2004 (Decided on 29.7.2010) M\/S. SRG IRON & STEEL (P) LTD., ……… Petitioner JAMSHEDPUR. .Vrs. COMMISSIONER OF COMMERCIAL TAXES, CUTTACK & ORS. ……….. Opp.Parties. ORISSA SALES TAX ACT, 1947 (ACT NO.14 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,25],"tags":[],"class_list":["post-222806","post","type-post","status-publish","format-standard","hentry","category-high-court","category-orissa-high-court"],"yoast_head":"\nM\/S. 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