HIGH COURT OF ORISSA: CUTTACK W.P.(C) No.25622 of 2011 In the matter of an application under Articles 226 and 227 of the Constitution of India. -------- Sri Iswarlal Jaiswal, Son of late Mahesh Prasad Jaiswal, Permanent resident of Jaiswal Roadways, Power House Road, PS: Uditnagar, Rourkela-12, Dist: Sundargarh … Petitioner -Versus- Commissioner of Commercial Taxes, Orissa and others … Opp. Parties For Petitioner : Mr.Santosh K.Mishra For Opp. Parties : Mr.R.P.Kar, Standing Counsel, (Commercial Taxes Department) ------- P R E S E N T: THE HONOURABLE THE CHIEF JUSTICE SHRI.V.GOPALA GOWDA AND THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA Date of Judgement:24.10.2011 B.N. Mahapatra, J. This writ petition has been filed with a prayer to direct opposite parties 1 and 2 to release the vehicle No.OR-14-U-8398 belonging to the petitioner detained at Unified Checkgate, Jamsolaghat on the ground that such detention of the vehicle is illegal and arbitrary. 2. Petitioner’s case in a nutshell is that he engages his vehicle for the purpose of transportation. M/s. Gupta Roadways, Jakaria Street, Kolkata asked the petitioner to carry the goods of opposite party No.3-M/s. Vinayak Agro Industry from Kolkata to Rourkela on hire payment basis. 16 MT of scrap spring patti leaf was loaded in the vehicle of the petitioner on 20.08.2011. M/s Gupta Roadways issued consignment note No.56236 and handed over the documents, i.e., tax invoice, challan of Lokenath Traders, Kolkata, manifest No.GR/4224/11 dated 20.08.2011 along with statutory way bill No.AAA3391612 in favour of opposite party No.3. When the vehicle reached at Jamsola Check post on 22.08.2011, the driver of the vehicle produced all the documents in connection with aforesaid goods before opposite party No.2 for verification. On verification and examination of documents with reference to goods, opposite party No.2 alleged that the goods were not scrap spring patti leaf rather the goods were auto parts (spring leaf in sets). On the basis of the aforesaid allegation, opposite party No.2 issued notice dated 24.08.2011 to opposite party No.3-M/s Vinayak Agro Industry and handed over the same to the driver of the petitioner. On receiving said notice, the petitioner contacted M/s Gupta Roadways as well as opposite party No.3 and appraised them about the facts of the case. The petitioner handed over the notice dated 24.08.2011 to opposite party No.3. The dispute regarding levy of tax and penalty under the OVAT Act by opposite party No.2 had not been resolved till filing of the writ petition. The vehicle is standing being detained by opposite party No.2 since 22.08.2011. Hence, the present writ petition is filed for release of the vehicle. 3. Mr.Santosh Ku. Mishra, learned counsel appearing on behalf of the petitioner submitted that the petitioner being the transportor had produced the required documents, i.e., bills, challans, bilities, statutory 2 way bills and despatch memo in terms of Section 74(2) of the Orissa Value Added Tax Act, 2004 (for short, ‘OVAT Act’) before opposite party No.2. So far as the petitioner is concerned, he had not committed any offence spelt out under Section 74(2) of the OVAT Act. The petitioner had carried all required documents and produced the same, when the vehicle was stopped for verification and also gave all information in his possession relating to the goods and allowed inspection of the goods to opposite party No.2 in compliance of Section 74(2) of the OVAT Act. It was further submitted that opposite party No.2 has not issued any notice to petitioner alleging commission of offence by him in terms of clause (b), (c), (d) or (e) of sub- section(2) of Section 74 or provisions of clause (a) of sub-section (4) of Section 74. The vehicle is exposed to sun and rain and is being damaged. The petitioner has purchased the vehicle by taking loan from Tata Motors Finance Limited, Rourkela and he is required to pay the instalments to the financing Company. The petitioner is losing income each and every day as his vehicle is being detained without any fault on his part. Despite petitioner’s prayer to opposite party No.2 to release his vehicle, the same did not yield any result. Concluding the argument, learned counsel Mr. Mishra prayed for release of the vehicle. 4. Mr.R.P.Kar, learned Standing Counsel appearing on behalf of the Revenue tried to justify the action of opposite party No.2 in detaining the vehicle of the petitioner on the ground that the documents produced before the Check Gate Officer with regard to goods in transit were found to be false and forged. 3 5. On rival contentions of the parties, the question that falls for consideration by this Court is as to whether opposite party No.2-Assistant Commissioner of Commercial Taxes, Unified Check Gate, Jamsalaghat, Mayurbhanj is justified in detaining the vehicle of the petitioner. 6. Case of the opposite party-authorities is that on verification of documents produced by the driver of the vehicle before the S.T.O., Unified Check gate, Jamsolaghat (for short, “S.T.O.”) with regard to the goods carried in the truck in question the stand of the petitioner that the goods loaded in the vehicle were scrap spring patti leaf was found to be false/forged. The description of goods carried in the vehicle has been declared in the document as scrap spring patti leaf but the goods were in good condition and each set consists of different number of leafs of auto parts (spring leaf in sets) to be used in different vehicles. After issuing show cause notice and considering the explanation of opposite party No.3, opposite party No.2 levied tax and penalty both under the OVAT Act and the Orissa Entry Tax Act. Being aggrieved by the imposition of tax and penalty both under the OVAT Act and the OET Act, opposite party No.3 approached this Court in W.P.(C). No.23516 of 2011 which was disposed of by this Court with liberty to the opposite party No.3 to approach the revisional authority and the revisional authority was directed to constitute a technical committee to find out status of the goods as to whether the same were old one or new. Pursuant to the order of this Court, technical committee was constituted which opined that the goods carried in the vehicle in question were new one. On the basis of such report, the 4 Commissioner in its order dated 15.09.2011 upheld the order of S.T.O. with regard to levy of tax and penalty under the OVAT Act. Being dissatisfied with the said revisional order, opposite party No.3 approached this Court again in W.P.(C). No.25628 of 2011 and this Court vide judgment dated 24.10.2011 upheld the order of opposite party No.1. In view of the same, opposite party No.3 is liable to pay the amount of tax and penalty of Rs.11,34,000/- under the OVAT Act. 7. As per the provisions of sub-section (6) of Section 74, during pendency of a proceeding under sub-section (5) if one prays for being impleaded as a party to the case on the ground of involvement of his interest therein, the officer-in-charge or the authorised officer referred to in that sub-section if satisfied may permit him to be so impleaded and thereafter all the provisions of this Section shall mutatis mutandis apply to him. 8. In the instant case, in paragraphs 6 and 7 of the writ petition, it is averred that opposite party No.2 issued notice dated 24.08.2011 addressed to opposite party No.3 and handed over the same to the driver of the petitioner and on receipt of such notice the petitioner contacted M/s Gupta Roadways as well as opposite party No.3 and appraised them about the facts of the case. In his writ petition, the petitioner has stated nothing with regard to taking step(s) in terms of sub-section (6) of Section 74 before opposite party No.2 to implead him as a party to the case on the ground of involvement of his interest therein. 5 9. In the instant case, not only the waybill and invoice copy but also the manifest No.GR/4224/11 dated 20.08.2011 issued by the transporter M/s. Gupta Roadways attached to the writ petition as Annexure-2 series disclose that the goods carried in the vehicle were scrap spring patti leafs. The Revisional Authority in its order pointed out that in all the documents, such as consignee’s own government waybill, consignment note of transferer and tax invoices of the consigner there is false declaration of description of the commodity/goods. Moreover, petitioner’s conduct in not taking steps as provided under Section 74(6) of the OVAT Act and watching from the side lines the outcome of the attempts made by the consignee opposite party no.3-M/s. Vinayak Agro Industry to release the goods does not appear to be clean. This is clearly indicative of collusion between the present petitioner and opposite party No.3-consignee for which both the S.T.O. and the Revisional Authority in their orders directed the consignee for payment of tax and penalty for release of the vehicle. 10. The Hon’ble Supreme Court in A.B.C. (India) Ltd. V. State of Assam & Anr., (2005) 142 STC 88 held as follows:- “…..As per the accepted norms of taxation the jurisdiction whatever is ancillary or subsidiary provision necessary for achieving the object of a tax statute is covered by Entry 54 of List II of the Seventh Schedule to the Constitution of India. The entries in the legislative List have a very wide meaning and scope and should have a broad interpretation so as to make provisions in the Act workable and in the interest of the Revenue. The obligation imposed upon the transporters under sections 42 and 44 of the Act is also a part of such 6 preventive measures against any evasion of taxes and the same should not be read in a narrow sense. xx xx xx In our view, the transporters are not strangers to the sale or purchase of goods; to the contrary are parts and parcels and are directly involved in storing the goods purchased or sold by, and in many cases such, transactions are fictitiously carried on in false names and addresses besides false classifications vis-à-vis transportation of such goods in and outside the State making themselves party to the episode of such fictitious transactions for the sole purpose of evasion of tax by the dealers purchasing and selling such goods.” 11. In view of the above, we are not inclined to issue a writ of mandamus to opposite parties 1 and 2 to release the vehicle of the petitioner without realisation of penalty imposed under the OVAT Act in addition to tax payable on the value of the goods carried in the vehicle as provided under sub-section (7) of Section 74 of the OVAT Act. However, we make it clear that immediately after realization of the tax and penalty demanded under the OVAT Act to the tune of Rs.11,34,000/-, the S.T.O. shall release the vehicle No.OR-14-U-8398. 12. In the result, with the aforesaid observation and direction, the writ petition is dismissed. ………………………….. B.N. Mahapatra, J. V. Gopala Gowda, C.J. I agree. ……………………….. Chief Justice Orissa High Court, Cuttack The 24th October, 2011/skj/ss/ssd 7