JUDGMENT :

B. N. Mahapatra, J.

Petitioner-Odisha Power Generation Corporation Ltd. in the present writ petition challenges the order of assessment dated 03.05.2014 (Annexure-6 series) passed by the Joint Commissioner of Sales Tax, Sambalpur Range, Sambalpur (fort short, “Assessing Authority”) under Section 9C of the Orissa Entry Tax Act, 1999 (for short, ‘OET Act’) for the period 01.04.2011 to 31.03.2013 levying additional entry tax at the rate of 0.5% amounting to Rs.2,40,81,536/-and penalty amounting to Rs.4,81,63,072/-on coal used by the petitioner-Company as raw material for generation of electricity on the ground that such levy is illegal, arbitrary and barred by limitation and outcome of non-application of mind, without jurisdiction and contrary to the provisions of OET Act.

2. Petitioner’s case in a nut-shell is that it is a Government of Odisha Undertaking incorporated under the Companies Act, 1956 and a joint venture of Government of Odisha and AES of USA having main objects to establish, operate and maintain power generating stations and tielines, sub-stations and main transmission line connected therewith. In other words, the petitioner is engaged in business of generation of electricity and distribution thereof in the State of Odisha. Ib Thermal Power Station (ITPS) is one of the thermal power generation units of the petitioner-Company situated at Ib Valley area in the district of Jharsuguda, Odisha. The petitioner has also set up mini hydel projects for furtherance of its business to achieve its objects. It is registered under the Orissa Value Added Tax Act, 2004 (for short ‘OVAT Act’) and OET Act and in the said registration certificate it has been authorized to purchase coal as raw-material for generation of electricity. The petitioner having thermal power plant is engaged in manufacture and distribution of electricity. It uses coal as primary/only raw-material in its thermal power plant for manufacture of electricity. Petitioner purchases coal for use as raw-material from Mahanadi Coal Fields Ltd. in Lakhanpur area. In thermal power plant, chemical energy in coal gets converted to heat energy which in turn gets converted to mechanical energy which ultimately gets converted to electrical energy.

Further case of the petitioner is that coal being raw-material in manufacture of electricity, it is entitled to the benefit of concessional levy of entry tax in terms of Rule 3 of OET Rules. The petitioner brings coal into local area for manufacture of electricity and has also furnished declaration in Form-E15 to its seller. During the period of assessment, the petitioner purchased coal for consumption in its power plant as raw-material at a cost of Rs.482,63,03,305.63 and paid entry tax thereon at the rate of 0.5% amounting to Rs.2,41,31,516.52. On the basis of audit visit report, the Assessing Authority passed the impugned assessment order denying the concessional rate of entry tax on coal without affording reasonable opportunity of hearing to the petitioner and without considering written note of submissions in its proper perspective. Hence, the present writ petition.

3. Mr. N. Venkataraman, learned Senior Advocate appearing for the petitioner submitted that coal is primary and important raw-material for generation of electricity as held by this Court in the case of Bhushan Power and Steel Limited Vs. State of Orissa, (2012) 56 VST 50 (Orissa). Hence, coal is exigible to entry tax at concessional rate in terms of Rule 3(4) of OET Rules.

The Assessing Authority has grossly failed to appreciate the judgment rendered by this Court in Bhushan Power and Steel Limited (supra) including the other judgment in NALCO in [W.P.(C) No.1597 and 1686 of 2012] relied upon by the petitioner before the Assessing Authority. Decision of this Court in Bhushan Power and Steel Limited (supra) holding that coal is a raw-material for the purpose of generating electricity has not been followed by the Assessing Authority on the ground that such