- (1.) LEAVE granted.
(2.) CHALLENGE in this appeal is to the order passed by a division Bench of the Orissa High Court disposing of the writ petition without any decision on merits because in respect of the assessment year in question, i. e. 2001-02, an order was earlier passed by this Court on 31/3/2006. A brief reference to the factual aspects will be necessary. The appellant, a Public Sector Undertaking carries on business in manufacture and sale of Iron and Steel and chemical Fertiliser as its finished product and bi-product, surplus and rejected articles, in course of inter-state trade and commerce and export. Apart from that, the appellant-Company effects transfer of stock of goods to its branches located at various places of the country. For the assessment year 2001-02, notice was issued under Rule 12 (5) of the central Sales Tax (Orissa), Rules, 1957 (in short 'central rules') for the purpose of assessment under Central Sales Tax act, 1956 (in short the 'act' ). After examination of the books of accounts produced, an extra demand of Rs. 19,25,41,763. 00 was raised. The appellant-Company had disclosed net sale and transfer of goods during the year under assessment in question as follows: JUDGEMENT_1075_TLPRE0_2008Html1.htm The Assessing Officer found that certain declaration forms in Form 'c' were not produced and, therefore, the differential tax was to be levied. With reference to Clause (a) of section 3, it was held that the sales made under the Annual memorandum of Understanding (M0u), which were treated as bank transfers are in fact, sales made in course of inter-state trade and commerce and, therefore, are subject to tax. Accordingly tax was levied. Questioning correctness of the assessment made, an appeal was preferred before the Assistant Commissioner of sales Tax, Sundergarh Range, Rourkela. During the pendency of the appeal, an application for stay was filed. The Assistant commissioner directed payment of part of the demand. An application for revision was filed before the Commissioner, who, by order dated 28. 12. 2005 in Revision Case No. SU-87/05-06 directed payment of Rs. 10. 00 Crores. A Writ Petition was filed before the High Court pointing out that the decision of this Court in Ashok Leyland Ltd. Vs. State of Tamil Nadu and anr. (2004 (3) SCC 1) had full application. A Division Bench of the High Court, by order dated 15. 02. 2006 directed deposit of rs. 2. 00 Crores. The said order was questioned in S. L. P. (C)No. 5314/2006. In the said special leave petition, several states and Union Territories were impleaded as opposite parties because it was pointed out that requisite tax under the act had already been paid in different States and Union territories. This Court passed the following order on 31. 03. 2006: "issue notice. There shall be interim stay in the meanwhile. Any payment already made in compliance of the High Court's order shall be without prejudice to the claims involved. " A few days thereafter, on 19. 04. 2006, the Assistant commissioner disposed of the appeal filed dismissing the same and confirming the order of assessment. A Second appeal was filed before the Orissa Sales Tax Tribunal (in short the Tribunal ). An application for stay was also filed. By order dated 14. 08. 2006, the Commissioner directed deposit of rs. 15. 00 Crores. The said order was challenged before the high Court and, as noted above, by the impugned order, the high Court disposed of the said petition without expressing any opinion on merits but observing that the matter was under examination by this Court. Though various points were urged in respect of the appeal, learned counsel for the appellant submitted that even without examination of various issues raised, by a cryptic and practically non-reasoned order, the Assistant commissioner has dismissed the appeal filed.
(3.) IT is submitted that a statutory appeal should not be disposed of in such a casual manner. It is pointed out that notwithstanding the fact that tax has been paid in several states where the articles transferred the Branches have been sold, the State has erroneously treated the transactions to be inter-state sale and levied tax which in essence amounts to double taxation. It is submitted that this is nothing but an attempt to collect tax illegally. It is not legal and is in clear violation of Article 265 of the Constitution of India, 1950 (in short the 'constitution' ). It is also pointed out that the ratio of the decision of this Court in Ashok Leyland Limited v. Union of India and Ors. (1997 (9) SCC 10) has not been kept in view. It is submitted that an amendment to the Act has been made and Section 19 has been introduced which reads as follows: "19. Central Sales Tax Appellate Authority (1) The Central Government shall constitute, by notification in the Official Gazette, an authority to settle inter-State disputes falling under Section 6a read with Section 9 of this act, to be known as "the Central Sales Tax appellate Authority (hereinafter referred to as the Authority)". (2) The Authority shall consist of the following members appointed by the Central. Government, namely:- (a) a Chairman, who is a retired Judge of the supreme Court, or a retired Chief Justice of a high Court; (b) an officer of the Indian Legal Service who is, or is qualified to be, an Additional secretary to the Government of India; and (c) an officer of a State Government not below the rank of Secretary or an officer of the central Government not below the rank of additional Secretary, who is an expert in sales tax matter. (2a) Notwithstanding anything contained in sub-section (2), the Chairman or a Member holding a post as such in the Authority for advance Rulings appointed under clause (a) or clause (c), as the case may be, of sub-section (2)of Section 245-0 of the Income Tax Act, 1961 may, in addition to his being the Chairman or a member of that Authority, be appointed as the chairman or a Member, as the case may be, of the Authority under this Act. (3) The salaries and allowances payable to, and the terms and conditions of service of, the chairman and Members shall be such as may be prescribed. (4) The Central Government shall provide the authority with such officers and staff as may be necessary for the efficient exercise of the powers of the Authority under this Act. " It is pointed out that ultimately the Central Sales Tax appellate Authority can decide the matter after the Tribunal in the concerned State decides the matter. It is the stand of the appellant that the Forum provided under the Statute is being rendered un-effective by the casual disposal of the appeal.;