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2023 (4) TMI 149 - ORISSA HIGH COURTLevy of Entry Tax - Hydrate Lime being a chemical can be treated as a schedule goods under the O.E.T. Act as mentioned in SI. No.6 Part-1 of Schedule appended to the O.E.T. Act, or not - validity of confirming the charging of entry tax on imported coke, when the dispute is pending for decision by the Larger Bench of the apex Court - imposition of penalty U/s. 7(5) of the O.E.T. Act - HELD THAT:- Section 7(5) has to be construed to mean that the presumption contained therein is rebuttable and the penalty of one and half times of tax assessed stipulated therein is only the maximum amount, which could be levied and the Assessing Authority has the discretion to levy lesser amount depending upon the facts and circumstances. In the absence of satisfaction, the presumption is that non-disclosure in the return is with an intention to evade payment of entry tax and, as such, depending on the facts of each case the Assessing Authority has to decide what would be the reasonable amount of penalty to be imposed. Thus, cardinal principle of the statute is that under the Act penalty may be imposed for failure to pay entry tax and furnish the return in due time, but the liability to pay penalty does not arise merely upon proof of default in filing return or failure to pay entry tax and furnish the return in due time. The Odisha Entry Tax Act being a new legislation and the petitioner being under the bona fide belief that the disputed goods is an un-scheduled goods and there being some confusion with regard to levy of entry tax on goods imported, being a new legislation, which is in a fluid state, no penalty should have been imposed - The cardinal principle of taxing statute is that when two views are possible, the view favourable to the assessee should be preferred and in that view of the matter no penalty should have been imposed on the petitioner. In view of the meaning attached to the word ‘penalty’ under different provisions of different taxing statute, in an unequivocal term it can be said that the penalty ordinarily becomes payable when it is found that an assessee has wilfully violated any of the provisions of the taxing statute. In view of the fact that in the instant case the petitioner has already paid the tax and so far as payment of tax is concerned there is no dispute. Since there is no violation or deviation in payment of tax, as a consequence thereof, the petitioner is not liable to pay the penalty - the impugned orders passed by the Assessing Authority, First Appellate Authority and the Sales Tax Tribunal, Cuttack, so far as imposition of penalty under Section 7(5) of the O.E.T. Act is concerned, are hereby quashed. The revision is allowed.
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