TaxTMI 
TaxTMI 
2010 (7) TMI 915
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....ch, 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 February 22, 2009 and levied tax and penalty both under the Orissa Value Added Tax Act as well as the Entry Tax Act. The 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-value" 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 be section 101 of the OVAT Act and had a proceeding been initiated against the petit....
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.... rate of Rs. 40 per square feet and determined the value of such excess amount at Rs. 3,34,320. Consequently, the Orissa entry tax determined as at two per cent amounting to Rs. 6,686 and penalty thereon (twice the tax due) Rs. 13,372 was imposed under the Orissa Entry Tax Act. Insofar as the OVAT Act is concerned, tax at 12.5 per cent was imposed on the excess quantity sought to be transported and determined at Rs. 41,790 and penalty under section 74(5) of the OVAT Act was levied, i.e., five times of the tax due, i.e., Rs. 2,08,950. Therefore, it raised total demand and penalty under both the Entry Tax Act and the OVAT Act as Rs. 2,70,798. Challenge had been made to this order by the assessee-petitioner, by way of a Revision Case ....
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....tion (1) is paid. (3) Where the goods referred to in sub-section (1) are found in stock and the dealer or the person on behalf of the dealer, on whom the notice under that sub-section was served, fails to pay the tax in terms of such notice, or where the tax demanded is not paid under sub-section (2), the Commissioner may offer to purchase such goods at a price at ten per centum above the purchase value or the value disclosed by the principal or agent in the case of goods received on consignment basis plus actual transportation charges and entrust such goods to the Orissa State Civil Supplies Corporation Ltd. or any Co-operative Society as may be notified for sale or sell it through public auction in the prescribed manner. (4) The dealer ....
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....officer authorized under sub-section (3), after giving the driver or person in charge of the goods a reasonable opportunity of being heard and holding such enquiry as he may deem fit, may impose, for possession or movement of goods (in transit), whether seized or not, in violation of the provisions of clause (a) of sub-section (2) or for submission of false or forged documents or way bill either covering the entire goods or a part of the goods carried, a penalty equal to five times of the tax leviable on such goods, or twenty per centum of the value of goods, whichever is higher, in such manner as may be prescribed. On perusal of the facts in the present case as would be evident from the documents appended thereto, we are of the considered....
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....marble. But, in fact, on physical verification and subsequent re-measurement, it was re-confirmed that the vehicle was carrying 12,623 square feet of marble. This fact itself clearly satisfies the requirement of section 74(5) of the OVAT Act. We are of the considered view that the documents submitted on behalf of the petitioner at the entry gate regarded were false and, therefore, clearly attract the applicability of section 74 of the OVAT Act, 2004. The learned senior counsel for the petitioner next contended that since this court has been pleased to allow the vehicle in question to enter into the State of Orissa and to unload the cargo and since the petitioner also deposited the additional tax amount both under the OVAT Act and OET Act a....
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....t in the case of Union of India v. Dharamendra Textile Processors [2008] 18 VST 180; [2008] 306 ITR 277; [2008] 231 ELT 3 wherein the honourable Supreme Court while considering section 11AC of the Central Excise Act, 1944 (levy of penalty) determined that the application of the aforesaid section would depend upon the existence or otherwise of all the conditions stated in the section. Once the section is found to be applicable in a case, the concerned authority would have, no discretion in quantifying the amount and penalty must be imposed as stipulated under sub-section (2) of section 11A of the Central Excise Act. This view has been re-affirmed by the honourable Supreme Court in the case of Union of India v. Rajasthan Spinning & Weaving Mi....