SHEETAL SURI Vs. COMMISSIONER OF SALES TAX

JUDGEMENT

(1.) This writ petition has been filed with a prayer for quashing the order dated 16.01.2012 (Annexure-1) passed by opposite party no.2-Additional Commissioner of Sales Tax, North Zone, Banijyakar Bhawan, Buxibazar, Cuttack and the orders dated31.12.2011 passed by the Sales Tax Officer, Vigilance, Sambalpur under Annexures-9 and 10 on the ground that the said orders are illegal, arbitrary and contrary to the provisions of Orissa Value Added Tax Act, 2004 (for short , "VAT Act") and Orissa Entry Tax Act, 1999 (for short, "OET Act").

(2.) Petitioner's case in a nutshell is that he is the owner of a vehicle bearing No.CG-04-DB-5707, which was used by him for transport business. On 16.12.2011 the petitioner's vehicle carrying 230 metres of pipe proceeded from Macawber Beky Pvt. Ltd. Greater Nodia (U.P.) to M/ s. Jindal Steel and Power Ltd., Angul, Odisha. The said consignment was covered with all valid required documents such as invoice No. 2172 dated 16.12.2011 for Rs.16,81,965/-, E. Waybill bearing No.21W- 110694206 etc. While the vehicle was running towards its destination at Angul, opposite party no.3 on 26.12.2011 intercepted and detained the said vehicle near Chandimal. On demand, the person in charge of the vehicle immediately handed over all original documents carried with him in support of the consignment, but opposite party no.3 without assigning any reason forcefully took the vehicle to Talasara Police Station without any notice or show cause to the person in-charge of the vehicle. Statement of the driver of the vehicle was recorded, but the driver signed the statement on coercion and duress without knowing the contents thereof. On 26.12.2011, opposite party no.3 served two notices; one under the OVAT Act and another under the OET Act. In response to the said notices, the petitioner appeared and filed a petition before opposite party no.3 on 29.12.2011 praying therein to drop the proceeding and release the vehicle as the consignment is covered with all valid/required documents and there was no contravention of any provisions of Section 74(2)(b)(c)(d) of the OVAT Act. The petitioner also denied the allegation of violation of the provisions of Sections 23 and 24 of the OET Act. It was submitted that due to Maoist menace and to save time and distance the driver of the vehicle entered into the State of Odisha to reach the destination as early as possible and in the said route no check post or barrier was established by the Government of Odisha. Subsequently, opposite party no.3 transferred the proceeding to his subordinate officer i.e. opposite party no.4 to deal with the case. When no action was taken in the proceedings, the petitioner submitted another petition before opposite party no.4 on 31.12.2011 and while the same was pending, the petitioner received two orders from opposite party no.4 on 2.1.2012 wherein opposite party no.4 rejected the petitioner's show cause reply and levied tax of Rs.67,279/- and penalty of Rs.3,36,395/- under the OVAT Act. Under the Orissa Entry Tax Act, opposite party No.4 levied entry tax of Rs.16,820/- and Penalty of Rs.33,640/-. Being aggrieved by the order passed by opposite party no.4, the petitioner filed revision under the OVAT Act and OET Act on 13.1.2012. The revisional authority passed one common order under the OVAT Act and OET Act and maintained only the imposition of penalty under the OVAT Act and OET Act made by opposite party No.4.

(3.) Mr. T.K. Satapathy, learned counsel appearing for the petitioner submitted that the order passed by opposite party no.2 is unjustified and untenable in the eye of law. Before opposite party no.4 passed the order of assessment, no due and proper opportunity was extended to the petitioner in the proceeding. Opposite party no.2 has erroneously created a new issue and levied penalty under the OVAT Act and OET Act. Consignment carried in the vehicle was accompanied by valid documents as required under Section 74(2)(a) of the OVAT Act and the same were immediately produced before opp. party no.3 on spot. The petitioner has not contravened any provision of sub-section (2) of Section 74 of the OVAT Act or submitted any false or forged documents to opp. party no.3 and the goods were covered by the E-way bill and as such the levy of tax and penalty under Section 74(5) of the OVAT Act is without any authority of law.