INDIAN INDUSTRIES Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner has assailed the vires of Section 5 -A of the Orissa Sales Tax Act, 1947 (for short 'the Act') as inserted by the Orissa Act 11 of 1990 which came into force on 1 -7 - 1990.

(2.) THOUGH a Bench of this Court had upheld the validity of the aforesaid section in O.J.C. No. 172 of 1992 (M/s. Sitania Enterprisers v. State of Orissa) decided on 13 -7 -1993, Shri Agrawal appearing for the petitioner contends that the point which he seeks to urge had not been canvassed in that O.J.C. We have, therefore, heard the learned counsel on the new point on the strength of which he seeks to assail the validity.

(3.) SHRI Agrawal has two points to canvass. The first is that in view of what has been stated in the proviso no surcharge can be leviable on those declared goods the rate of tax of which under the Act has been fixed at 4 per cent. The learned counsel does not, however, stop there and urges that the proviso itself must be treated to be non est because the surcharge is not payable in respect of goods though the proviso speaks of the same. The learned counsel then contends that if the proviso be non est. Sub -section (1) would be invalid being hit by Section 15 of the Central Sales Tax Act (hereinafter referred to as 'the Central Act').