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2019 DIGILAW 477 (ORI)

Durga Tobacco v. State of Orissa

2019-07-23

K.S.JHAVERI, KRUSHNA RAM MOHAPATRA

body2019
ORDER : 1. Since the issues involved in all these writ petitions are similar in nature, as agreed upon by learned counsel for the parties, all these writ petitions are taken up together for analogous hearing and to decide the same by a common order For the sake of convenience of discussion, on the request of the parties involved in the cases, W.P. (C) No. 10438 of 2003 is taken up as the leading case for hearing 2. By way of these writ petitions, the petitioners have challenged the levy and collection of Orissa Forest Development Tax under Section 3 of The Orissa Forest Development (Tax on sale of forest produce by Government or Orissa Forest Development Corporation) Ordinance, 2003 vide Orissa Ordinance No.3 of 2003, dated 18.07.2003, and subsequently an Act, i.e., The Orissa Forest Development (Tax on sale of forest produce by Government or Orissa Forest Development Corporation) Act, 2003 was promulgated on 8.12.2003, by virtue of Orissa Act 18 of 2003 (for short "the Act, 2003") making it effective from 18.07.2003 Petitioners have further challenged the levy of the fax with effect from 18.07.2003 on the ground-that the rate of tax has been notified only with effect from 30.07.2003. 3. Mr. Kar, learned counsel for the petitioners submits that the issue involved in these cases have already been settled by this Court in its elaborate judgment dated 10.04.2019 passed in W.P. (C) No. 12373 of 2003 and batch of writ petitions. Hence, the present writ petitions may be disposed of in the light of the said judgment. For ready reference relevant portion of the said judgment dated 10.04.2019 is quoted hereunder:- "15. We have heard learned counsel for the parties and gone through the provisions of the Orissa Act 18 of 2003 and the relevant Entries of the Constitution of India upon which reliance has been placed by the learned counsels for the parties Taking into consideration the Entry 54 of List-II, it is very clear that the State Government is competent to legislate an Act for the purpose of imposing tax of purchase of sale of goods. 16. 16. Tax on sale and purchase of goods other than the newspaper is subject to the provisions of Entry 92A Therefore, it will be very difficult for us to hold that the State has no competence to enact the Act, but while interpreting the provisions of the Act and the charging Section i.e. Section 3 of the Act, we are of the view that the Act in question, which came into force, will operate only for intra-State sales i.e. sales within the State of Orissa. In so far as transactions which are clearly inter-state transactions in nature, as in the present cases, there can be no levy of the said tax in view of the clear provisions under Entry-92A of List-I of the Constitution of India. 17. In that view of the matter, we are of the opinion that the transactions which are within the State of Orissa, this tax can be levied. But, the transaction which is inter-State, the provisions of the Act cannot be operated in view of Entry 92A 18. Considering the entire fact situation of the case, relevant provisions of the Act and the decisions referred to above, the writ petitions are disposed of with declaration that for transactions which are inter-State in nature, the provision of the Act, 2003 will not be enforced. Therefore, the Corporation will examine facts of each of the matter individually and recommend the State Government or the competent authority for refund of the Tax collected 19. So far as the argument of Mr. R.P. Kar, learned counsel, with regard to collection of tax from 18.07.2003 to 30.07.2003, in view of the Notification which came to be published for the first time on 30.07.2003, tax collected prior thereto is declared to be bad in law, hence the same is also required to be refunded. 20. It is made clear that the amount of tax collected, which is lying with the Corporation, will be refunded by the Corporation and if it is lying with the State Government, the same will be refunded by the State Government. 21. 20. It is made clear that the amount of tax collected, which is lying with the Corporation, will be refunded by the Corporation and if it is lying with the State Government, the same will be refunded by the State Government. 21. The refund shall be made within a period of four months from the date of receipt of a copy of this judgment along with application for refund from the petitioners individually if the amount is not refunded, as directed, within four months, then claimant will be entitled to interest at the rate of 8% from the date of depositing the amount. The writ petitions are allowed to the extent indicated above. No order as to cost." 4. Accordingly, the present batch of writ petitions are disposed of in the light and in terms of the judgment pronounced on 10.04.2019 in W.P.(C) No. 12373 of 2003 and batch of writ petitions. 5. While parting with the case, this Court feels it necessary to clarify that since in view of similar interim orders passed by this Court on different dates in respective writ petitions the petitioners are paying Forest Development Tax in respect of the inter-State sales after 30th July, 2003, they are entitled to refund of the same along with interest applicable on fixed deposits in terms of said interim orders. Interim orders, if any stands vacated.