JAI JAGANNATH MARBLE Vs. COMMISSIONER OF COMMERCIAL

JUDGEMENT

(1.) THIS writ application has been filed by the Petitioner -M/s. Jai Jagannath Marble seeking to challenge an order dated 6.2.2009, passed by the learned Additional Commissioner of Commercial Taxes, Northern Zone, Orissa, Sambalpur (Opposite Party No. 2), confirming the order passed by the Sales Tax Officer (Vigilance), Sambalpur (Opposite Party No. 3) in which, while coming to a finding that, the dealer had been found to be carrying excess stock of marble and the same was detected at the Konoktora Check Gate on 22.2.2009 and levied tax and penalty both under the OVAT Act as well as the Entry Tax Act.

(2.) LEARNED Senior Counsel appearing for the Petitioner, inter alia, assails the aforesaid impugned orders on the ground that, since the Petitioner was found to have made "under valued" the transaction of marbles purchased by it, no proceeding under Section 74(5) of the OVAT Act could have been initiated against him and that, the appropriate provision in the present circumstances ought to have Section 101 of the OVAT Act and had a proceeding been initiated against the Petitioner under Section 101 of the OVAT Act, no penalty could have been levied in the present case.

(3.) ON perusal of the facts in the present case as would be evident from the documents appended thereto, we are of the considered view that Section 101 of the OVAT Act has no application to the facts of the present case as it is clear from the documents appended to the writ application that, the Petitioner had suppressed and/or failed to disclose the actual quantity of marbles that he was seeking to bring into the State of Orissa. Although some issues regarding the actual quantum of marble was raised, the same no longer remains in dispute , since by way of an interim order dated 11.2.2009, the vehicle of the Petitioner had been permitted to be released in his favour and in compliance of certain terms and conditions as noted in the order dated 11.2.2009 passed in Misc. Case No. 1624 of 2009 and more importantly, directions were also issued to the concerned Sales Tax Officer to ensure re -measurement of the stock of marble in the presence of representative of the Petitioner at the earliest. It is the admitted case of the parties that the Petitioner, in fact, complied with the interim orders by making the necessary deposit and re -measurement by the Sales Tax Officer had, in fact, taken place in the presence of the representative of the Petitioner. The result of re -measurement was that the measurement made earlier by the Sales Tax Officer (Vigilance) at the check gate was correct and stood confirmed.