Krishna Steel Industries and Krishna Rolling Mills Vs. State of Orissa - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. s.c. mohapatra, j.1. this is a reference under section 24(2)(b) of the orissa sales tax act (hereinafter referred to as 'the act') at the instance of the dealer. a statement of the case on the following question of law arising out of the order was called for :'whether on the facts of the case and on an interpretation of different provisions contained in the orissa sales tax act, the tribunal was correct to hold that the levy of tax under the second proviso appended to section 5(2)(a)(a)(ii) of the act was justified ?'.2. the dealer is a partnership firm being registered under the act and carries on the business in iron and steel. it is entitled to purchase iron and steel scrap free of tax for resale as it revealed from its certificate of registration. for the year 1979-80, the petitioner purchased scrap and furnished declaration in form xxxiv for resale. out of the purchased scrap the dealer utilised a portion of the scrap in manufacturing mild steel rounds in its manufacturing units. the purchase price of such scrap so utilised comes to rs. 42,15,660.53. the assessing officer held that the dealer has contravened the declaration and as such is liable under the second proviso to section 5(2)(a)(a)(ii) of the act.this was confirmed by the assistant commissioner in the first appeal and by the tribunal in the second appeal.3. mr. b. agarwala, the learned counsel for the dealer, submitted that in the absence of any finding that the mild steel was not sold but was utilised for purposes other than resale, the second proviso to section 5(2)(a)(a)(ii) of the act is not attracted for making the petitioner liable. mr. a.b. misra, learned senior standing counsel, commercial taxes department, urged that by utilising the scrap for manufacture of mild steel rounds the petitioner has utilised the scrap for a purpose other than resale and accordingly, the assessing authorities were justified in making the petitioner liable on that ground.4. this question is no longer res integra. various benches including the present bench have held at different times that in such circumstances, the liability of the dealer under the second proviso to section 5(2)(a)(a)(ii) is not attracted. see [1988] 69 stc 187 (orissa) (konark steel industries v. sales tax officer), [1988] 69 stc 202 (orissa) (konark steel industries (p.) ltd. v. sales tax officer), [1988] 69 stc 231 (orissa) (b. agarwala v. sales tax officer), [1988] 70 stc 228 (orissa) (utkal steels limited v. sales tax officer). this bench in o.j.c. no. 2114 of 1980 decided on 6th november, 1987 [konark steel industries (p.) ltd. v. sales tax officer], had also taken the same view. the contention of the learned standing counsel relying upon the decision of the supreme court in [1967] 20 stc 430 (devi dass gopal krishnan v. state of punjab) was considered in one of the decisions and the decision was distinguished.5. in view of the aforesaid decisions of this court, the question of law arising out of the order is answered in the negative in favour of the assessee. there shall be no order as to costs.h.l. agrawal, c.j.6. i agree.