M/s. Sobha Gudakhu Factory vs State Of Odisha

The present revision arises from an order dated 2nd August, 2010 passed by the Orissa Sales Tax Tribunal, Cuttack (Tribunal) in S.A. Nos.844-845

of 2002-03 holding that the present Petitioner “has not only failed to show that additional tax is charged or paid by him for the withheld amount but

also has withheld such documents.†The Tribunal proceeded to presume that “no such document exists.†Consequently, the conclusions drawn

by the STO, Bolangir in the assessment order dated 20th December, 2001 and by the A.C.S.T., Bolangir in the order dated 30th April, 2002 dismissing

the appeal for non-production of documents “cannot be disturbed in this second appeal.â€​

In the present revision petition in para 7 (iii), the Petitioner has averred as under:

 “7. (iii) For that the Petitioner having produced proof of payment of excise duty on gudakhu after closure of hearing and before passing of the order the tribunal

ought to have considered the same in the interest of justice. Instead of considering the same it came to the erroneous finding that no such proof of payment has been

furnished by the Petitioner.â€​

On the previous date of hearing i.e. on 23rd March 2021, the Court passed the following order:

“1. In view of the averment in the petition in paragraph-7 (iii) that the Petitioner has produced “proof of payment of excise duty on gudakhu after closure of

hearing and before passing of the order of the Tribunalâ€​, it is incumbent on the learned counsel of the Petitioner to, in fact, show that such documents were filed.

Learned counsel for the Petitioner seeks some more time to produce before the Court proof of having filed such documents before the Tribunal. Additionally the

Court requests the Tribunal to send the entire record of Second Appeal No.844-845 of 2002-03 by the next date.

List on 22nd June, 2021. A copy of this order be delivered forthwith through Special Messenger to the Registrar of the Odisha Sales Tax Tribunal for compliance.â€​

Pursuant thereto, the Petitioner filed an affidavit on 3rd June, 2021 where in para 3, it has been stated as under:

“3. That the Petitioner humbly submits that the hearing of the second appeals was held on 29.07.2010 before the Division Bench III at Balangir Camp. Sri Nakul

Agarwal, Advocate was representing the Petitioner and Sri B. B. Khalko, DCCT, Hqrs (Appeal) was representing the Sales Tax Department. The Ld. Counsel for the

Petitioner had filed the Xerox copy of challan along with the personal ledger account towards proof of payment of Additional Excise duty for sale of ‘Gudakhu’

to the office of Collectorate of Central Excise & Custom, Bhubaneswar.

Copy of the same was duly received by the State Representative.

The copies of the said documents are annexed hereunto as Annexure 6 series.â€​

Today, the Court has perused the record of the Tribunal. As far as the present case is concerned, it does show that on 28th July 2010, the Petitioner

had placed on record the documents, which have been enclosed with the affidavit filed before this Court.

Clearly from the impugned order of the Tribunal, it is evident that the aforementioned documents, which were presented just one day before the

hearing concluded and before the impugned order could be pronounced, were not taken into consideration by the Tribunal.

Accordingly, the Court sets aside the impugned order dated 2nd August, 2010 of the Tribunal and restores S.A. Nos.844-845 of 2002-03 to the file

of the Tribunal. The said appeals will now be listed there for directions on 11th October, 2021. The Registry will ensure that the entire record of the

Tribunal along with certified copy of this order will be delivered by Special Messenger to the Tribunal within one week from today and an

acknowledgement obtained and placed on the file of this matter.

It is made clear that this Court has not expressed any opinion on any of the aforementioned documents produced by the Petitioner before the

Tribunal on 28th July, 2010.

A fresh decision will now be taken by the Tribunal in the aforementioned appeals in accordance with law, preferably within a period of six months

from 11th October, 2021.

The revision petition is disposed of the above terms.

Issue urgent certified copy of this order as per rules...

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