TaxTMI 
TaxTMI 
TaxTMI 
2014 (11) TMI 162
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....aimed to have been made from the registered dealers, namely, M/s Valvoline Cummins Ltd., Cuttack (RC No.CUIC 2243); M/s Gulf Oil India Ltd., Cuttack (CUIC 1716); M/s Penzoil Quaker State (I) Ltd., Cuttack (CUIC 1239) ; and M/s Lubrico, Bhubaneswar (BH I 895). The total purchases from those registered dealers were claimed to be Rs. 99,84,912/-. The assessment was completed under Section 7 of the OET Act. In the assessment order, it has been observed that the petitioner has not paid the Entry Tax on the turnover of purchases to the tune of Rs. 1,00,29,806/-. Being aggrieved at the assessment order, the petitioner preferred first appeal before the Joint Commissioner of Sales Tax, who passed the ex parte order. The petitioner carried further appeal to the Odisha Sales Tax Tribunal (for short, "Tribunal"), who upon hearing the same set aside the order passed in First Appeal and directed the First Appellate Authority to hear the matter afresh. Pursuant to the remand order of the learned Tribunal, the petitioner appeared before the First Appellate Authority and contended that it was not liable to pay Entry Tax as entry tax had been collected as handling charges etc. in the sale invoices. ....
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....ing the Second Appeal, the dealer /petitioner filed an application for issue of summons to the registered dealers, from whom scheduled goods were purchased, to call for the connected records of selling registered dealers to verify and examine the correctness of the claim of the dealer-petitioner. To prove the bona fide of the petitioner's contention, the petitioner filed a copy of the order of assessment passed in respect of one of the sellers where entry tax has been paid by the aforestated seller. Before the learned Tribunal, the petitioner, inter alia, filed photocopy of the sale invoices dated 30.05.2003 and 09.07.2003 issued by M/s Lubrico, wherein it has been stated by the seller in the body of the sale invoice that inclusive of tax, which implies that the sale price was inclusive of entry tax, inasmuch as OST and surcharge have been charged separately in body of the sale invoice. 4. It was further submitted that under Rule 93(I) of the OST Rules, 1947 "lubricants" are declared to be taxed at the point at which the first of such sales is effected by a dealer. In the instant case, first sale is effected by four dealers registered in the State. Tax liability rests on these....
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.... tax has already been paid under the Act for such goods and no tax shall be further levied under the O.E.T. Rules in respect of such goods purchased by a dealer, the dealer is required to furnish a declaration in Form E-1. The dealer appellant has furnished declaration in form E-1 but bill/invoices No. and date and quantity and entry tax paid as per the invoices in column No.3,4 and 6 respectively have not been filled properly and correctly as prescribed U/r. 3(5) of the O.E.T. Rules to prove that no tax shall be levied further under this Rule in respect of the goods purchased by him. Hence this declaration furnished in form E-1 is not acceptable. It is apparently clear from the above discussion that the goods i.e. lubricants purchased by the dealer-appellant from the dealers of Orissa are not entry tax paid goods. Hence, I am not inclined to interfere in the order of assessment passed by the learned S.T.O. The order of assessment is confirmed." 8. The learned Tribunal in second appeal inter alia has observed as follows:- "3. In the second journey to the Tribunal, the learned Advocate for the appellant filed Xerox copy of statement of purchase and prayed for ve....
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....; (D) Whether the Tribunal is justified in fixing the entry tax liability on the petitioner presuming that the entry tax had not suffered earlier in the hands of the sellers particularly when as per the provisions of Section 3 of the OET Act the liability to pay entry tax in the present facts and circumstances of the case rests with the sellers who had bought the scheduled goods into the "local area" inside the State of Odisha for consumption, use or sale therein? (E) Whether further levy of entry tax by the forums below is maintainable in the eye of law, particularly when entry tax has already suffered in the hands of the first seller inside the State of Odisha is apparent, inasmuch as when under Rule 93 I of OST Rules, lubricants are declared to be taxed at the point when the first of such sales is effected by a dealer? (F) Whether on the fact and in the circumstances of the case, the charging section, i.e., Section 3 of the OET Act had any application in respect of the purchases made inside the State of Odisha, more particularly, inside the "local area" as defined under the said Act? (G) Whether the order of assessment ....
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....or any other person or to conduct any inquiry to test the correctness of its claim that the goods purchased by him has suffered tax at the hands of any purported selling dealer of outside the local area? 11. To deal with question No.(i), it is necessary to know what is contemplated in the charging section under the Entry Tax Act. Section 3 of the Entry Tax Act is the charging section, the relevant portions of which are reproduced below:- "3. Levy of Tax:- (1) There shall be levied and collected a tax on entry of the scheduled goods into a local area for consumption, use or sale therein at such rate not exceeding twelve percentum of the purchase value of such goods from such date as may be specified by the State Government on different dates and different rates may be specified for different goods and local areas subject to such conditions as may be prescribed. (2) The tax leviable under this Act shall be paid by every dealer in scheduled goods or any other person who brings or cause to be brought into a local area such scheduled goods whether on his own account or on account....
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....tion of a taxing statute utmost care should be taken to give proper meaning to the words of the statute and the same should be construed strictly. Its construction cannot be extended beyond the language used in the charging section. 15. In view of the above, we are of the considered opinion that no entry tax can be levied on scheduled goods purchased inside the local area from another registered dealer of the same local area who brought the scheduled goods into the local area. 16. Question No.(ii) is whether under law it is obligatory on the part of a dealer to furnish Form E-1 in respect of the goods purchased by it from 13 another registered dealer of the same local area who brought the scheduled goods in question into the local area. 17. Let us first see, who is liable to furnish Form E-1 as prescribed under Rule 3(5) along with return under Rule 10(1) of the OET Rules. Rule 10(1) envisages that the return under sub-section (1) of Section 7 of the OET Act shall be furnished in Form E3. In Form E3, a dealer has to furnish/declare various information under different heads. Column 8 of the return Form E3 requires a dealer to declare the "purchase value of scheduled goods brought....
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....n support of his contention, he has furnished Form E1 as prescribed under Rule 3(5) of the OET Rules. The above claim of the petitioner was rejected by the authorities below on the ground that it has not furnished complete/defect free Form E-I 15 as prescribed under sub-rule (5) of Rule 3 along with return under sub-rule (1) of Rule 10 of the OET Rules. 24. Now, we have to examine whether it is mandatory for the dealer- petitioner registered under Cuttack-I Central Circle, Cuttack to furnish Form E1 along with return under Rule 10(1) of the OET Rules in respect of the goods purchased by it from a dealer registered in Bhubaneswar-1 Circle, Bhubaneswar and non-furnishing of Form E1 makes the dealer-petitioner liable to pay entry tax. 25. At this juncture, it is necessary to quote the relevant portion of sub-rule (5) of Rule 3 of the OET Rules:- "3. Rate of Tax.-(1) to (4)... (5) Notwithstanding anything contained in this rule, no tax shall be levied under these rules in respect of such goods purchased by a dealer for which the details are furnished in Form E1 along with the return under sub- rule (1) of Rule 10 to prove that such good....
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.... it have already been subjected to entry tax or that the entry tax has already been paid under the Act for such goods and that non- furnishing of Form E-1 as prescribed under sub-rule (5) of Rule 3 along with return under sub-rule (1) of Rule 10 makes the dealer, who brings the scheduled goods into the local area, liable to pay the entry tax on scheduled goods purchased from outside the local area. 30. Question No.(vi) is whether a dealer who has brought the scheduled goods into the local area and has filed a defective Form E-1 can call upon the Department to summon or call for the records of the selling dealer or any other person or to conduct any inquiry to test the correctness of its claim that the goods purchased by it has suffered tax at the hands of any purported selling dealer. 31. There is a conceptual difference between production of alternative materials to avail benefit of tax (for example, Section 6(2) of the CST Act, 1956 and production of Form-F) and mandatory requirement to produce declaration form (for example, Form-C under the CST Act, 1956 and Form-D under the OST Act, 1947) to avail tax concession/benefit. In other words, wherever, alternatives are provided, it....