State of Orissa Vs. Jyoti Trading Company - Court Judgment |
| Sales Tax |
| Orissa High Court |
| Jul-07-1992 |
| S.J.C. No. 15 of 1987 |
| A. Pasayat and ;D.M. Patnaik, JJ. |
| [1993]88STC530(Orissa) |
| Orissa Sales Tax Rules, 1947 - Rule 93K |
| State of Orissa |
| Jyoti Trading Company |
| S.K. Patnaik, Additional Standing Counsel (Commercial Taxes) |
.....agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive,..........directed the orissa sales tax tribunal (in short, 'the tribunal') to state a case and refer the following question for opinion :'whether, on the facts and in the circumstances of the case, the sales tax tribunal is justified to hold that, jam, jelly, tomato sauce and squash are covered by item (4) of rule 93-k for levy of tax at the first point of sale ?'pursuant to the direction, the tribunal has stated a case.2. in spite of notice, there is no appearance on behalf of jyoti trading company (hereinafter referred to as 'the denier'), the opposite party.3. the only question which falls for consideration is whether jam, jelly, tomato sauce and squash are covered by item (4) of rule 93-k of the orissa sales tax rules, 1947 (in short, 'the rules'). the said rule enumerates items of goods which are taxable at the first, point in a series of sales. the tribunal was of the view that the expression 'such as' used in the rule indicates that articles intended to be encompassed were of species and those specifically indicated were only illustrative. it held that the articles in question were covered by rule 93-k. the tribunal based its conclusion on the standing order nos. 6884 dated.....
A. Pasayat, J.
1. At the instance of the Revenue by an application under Section 24(2) of the Orissa Sales Tax Act, 1947 (in short, 'the Act'), this Court directed the Orissa Sales Tax Tribunal (in short, 'the Tribunal') to state a case and refer the following question for opinion :
'Whether, on the facts and in the circumstances of the case, the Sales Tax Tribunal is justified to hold that, jam, jelly, tomato sauce and squash are covered by item (4) of Rule 93-K for levy of tax at the first point of sale ?'
Pursuant to the direction, the Tribunal has stated a case.
2. In spite of notice, there is no appearance on behalf of Jyoti Trading Company (hereinafter referred to as 'the denier'), the opposite party.
3. The only question which falls for consideration is whether jam, jelly, tomato sauce and squash are covered by item (4) of Rule 93-K of the Orissa Sales Tax Rules, 1947 (in short, 'the Rules'). The said rule enumerates items of goods which are taxable at the first, point in a series of sales. The Tribunal was of the view that the expression 'such as' used in the rule indicates that articles intended to be encompassed were of species and those specifically indicated were only illustrative. It held that the articles in question were covered by Rule 93-K. The Tribunal based its conclusion on the Standing Order Nos. 6884 dated March 22, 1967 and dated July 26, 1966 issued by the Commissioner of Sales Tax where jam, jelly, tomato sauce and squash, etc., were stated to be a part of the tinned food and beverages. The Tribunal seems to have lost sight of the fact that all foods and beverages are not covered by the entry. Only such of them which are contained in sealed containers, and are akin, similar or of the kind of specific goods mentioned in the latter part of the item, become taxable at the first point in a series of sales. In other words, any other goods to be covered by item has to take its colour from specific goods mentioned in the latter part. Item of articles with which we are presently concerned, cannot be said to be akin, similar or of the kind mentioned in the item itself. The articles specified in the item certainly have different use than the articles under reference. Therefore, the Tribunal was not justified in its conclusion.
Reference at the instance of the Revenue is answered in its favour, and against the dealer.
D.M. Patnaik, J.
4. I agree.