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The Minerals and Metals Trading Corporation of India Ltd. Vs. the State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtOrissa High Court
Decided On
Case NumberOriginal Jurisdiction Case No. 1714 of 1980
Judge
Reported in[1983]52STC133(Orissa)
AppellantThe Minerals and Metals Trading Corporation of India Ltd.
RespondentThe State of Orissa and ors.
Appellant AdvocateR. Mohanty, ;R. Sharma and ;Jayant Das, Advs.
Respondent AdvocateAdv. General and ;Standing Counsel (C.T.)
Cases ReferredAshok Servicentre v. Sales Tax Officer
Excerpt:
.....not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. -- state financial corporations act, 1951. section 29; discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not..........two facets of a common point. the learned standing counsel concedes that there can be no demand of additional sales tax when there is no intra-state sale. in view of the concession, it must follow that inter-state and export sales are not liable to additional sales tax. in our opinion, the concession is appropriate, and therefore, it is unnecessary to elaborate the points argued at the bar. it is sufficient to indicate that there would be no liability under the additional sales tax act in respect of inter-state and export sales.5. as regards the fourth and last point, challenge is to rule 4(2) of the rules made under the 1975 act which authorises imposition of penalty in the event of default. it has been contended that in the absence of statutory provision for levy of penalty, under.....
Judgment:

R.N. Misra, C.J.

1. The petitioner before us is the Minerals and Metals Trading Corporation of India Limited, and challenge is to the validity of the Additional Sales Tax Act of 1975 as amended in 1979.

2. Four points have been canvassed by Mr. Mohanty on behalf of the petitioner in support of the application, namely:

(i) The impost is, in pith and substance, an addition to the impost under Section 5(1) of the 1947 Act and consequently must fit into the scheme of the parent Act and cannot be destructive thereof;

(ii) The Orissa Act 24 of 1975 and the Orissa Act 3 of 1979 are ultra vires Article 286(1)(b) of the Constitution and are beyond the legislative competency under entry 54 of List II of the Seventh Schedule to the Constitution of India read with Section 5 of the Central Sales Tax Act;

(iii) The impugned Act is ultra vires Article 286(1)(a) of the Constitution read with Section 6 of the Central Sales Tax Act; and

(iv) In the absence of statutory provision for levy of penalty, under delegated legislation no rule could be made for such imposition.

3. So far as the first contention is concerned, we have elaborately dealt with the point in our judgment of today in Ashok Servicentre v. Sales Tax Officer (C.J.C. No. 1391 of 1979) [1983] 52 STC 50, and have negatived the same. We adopt the reasons and reject the contention.

4. The second and third contentions are actually two facets of a common point. The learned standing counsel concedes that there can be no demand of additional sales tax when there is no intra-State sale. In view of the concession, it must follow that inter-State and export sales are not liable to additional sales tax. In our opinion, the concession is appropriate, and therefore, it is unnecessary to elaborate the points argued at the Bar. It is sufficient to indicate that there would be no liability under the Additional Sales Tax Act in respect of inter-State and export sales.

5. As regards the fourth and last point, challenge is to Rule 4(2) of the Rules made under the 1975 Act which authorises imposition of penalty in the event of default. It has been contended that in the absence of statutory provision for levy of penalty, under delegated legislation no rule could be made for such imposition. The learned standing counsel concedes in view of the pronounced authorities of the Supreme Court on this score, that the State Government as delegated legislating authority could not, without appropriate statutory function, authorise imposition of penalty. In view of this concession, which we accept as fair, the rule which authorised imposition of penalty must be struck down as ultra vires the Act.

6. The writ application is disposed of with the aforesaid direction. No costs.

B.K. Behera, J.

I agree with my Lord, the Chief Justice.


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