9911796707
TMI Blog2021 (5) TMI 697X X X X Extracts X X X X X X X X Extracts X X X X ..... 99 (filed by the Petitioner-assessee). 3. The common questions of law framed by this Court on 27th November 2019, in both the revision petitions read as under: (1) Whether in the particular facts and circumstances of the case the imposition of penalty u/s 9-B (3) of the OST Act can be said to be legally justified? (2) The petitioner being liable to collect and pay tax with effect from 1.12.1993 on the original installed capacity of 13500MT of Cement as a registered dealer whether the finding of the Orissa Sales Tax Tribunal to the effect that the collection of tax by the petitioner is not authorized under law is legally correct? (3) Whether consideration of relevant and irrelevant materials together by the Tribunal while coming to it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l capacity of 22500MT s of cement over and above the installed capacity of 13500MTs. Commercial production at its expanded unit commenced on 16th July, 1992. Under the IPR 1989, the sales tax exemption in so far as the expanded unit was concerned commenced with effect from 16th July 1992 itself. 7. For the year 1994-95, assessment was completed under Section 12 (4) of the OST Act when the Sales Tax Officer (STO) passed the assessment order on 31st May, 1996. The Petitioner was held liable to pay tax on sale of cement with effect from 1st December 1993 insofar as the existing unit having installed capacity of 13500MTs is concerned. For the AY 1995-96, by the assessment order dated 7th March 1997, the STO held likewise. 8. The Intelligence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while enjoying the exemption under Entry-30-FFF of the tax free schedule under the OST Act. In similar manner, the penalty was imposed for the years 1992-93, 1993-94 and 1995-96. 11. Aggrieved by these orders, the Petitioner preferred appeals before the Assistant Commissioner of Sales Tax (ACST), Sundargarh Range, Rourkela. By a common order dated 18th August 1998 for the years 1992-93 to 1995-96, the ACST waived the penalty for the year 1995-96 completely as there was no proof of the Petitioner having illegally collected the sales tax. For the years 1992-93 to 1994-95, the penalty was reduced from Rs. 37,36,724/- to Rs. 2,77,785/-. 12. Aggrieved by the above order of the ACST, the Petitioner as well as the State filed the aforementioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t order passed by the STO noting that the Petitioner had produced the books of account for the period 1992-93 to 1995-96. The fact of the matter was that the Department was not able to present any credible evidence to show that the Petitioner had illegally collected tax on the sale of cement for any of the years in question. The STO overlooked the fact that in respect of the installed capacity of 13500MTs, the Petitioner was exempted from sales tax on the finished products i.e. cement up to 1st December, 1993. There is nothing to show that during this period it collected sales tax illegally. This was the position even for the year 1993-94. This was noticed by the Tribunal in the impugned order where it categorically observed as under: "Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner on the ground that it had deposited the amount of sales tax realized. The fact of the matter is that as far as the installed capacity was concerned, with the exemption on payment of sales tax on the finished product having come to end on 1st December 1993, the Petitioner was bound to collect the sales tax on the finished product which in fact it did. It was this tax that the Petitioner deposited with the Department. This cannot be understood as any admission by the Petitioner of having illegally collected the tax and having thereafter 'returned' to the Department. On the contrary, the explanation offered by the Petitioner that it was bound to collect the sales tax for this period is both logical and correct. If that is the position, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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