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2010 (11) TMI 860 - MADRAS HIGH COURTWhether in the facts and circumstances of the case, the Appellate Tribunal is right in restoring the levy of purchase tax on the purchase consideration of ₹ 6,35,917/- paid by the petitioner on the purchase of fly ash from TNEB by shifting the point of levy from the point of first sale to the point of purchase ? Whether in the facts and circumstances of the case, the Appellate Tribunal is right in restoring the levy of purchase tax on the sum of ₹ 40,02,498/- being the expenses incurred by the petitioner for transporting the fly ash to their factory, when the condition of sale by TNEB was ex-works and the transportation charges were post purchase expenditure ? Whether in the facts and circumstances of the case, the Appellate Tribunal is right in restoring the penalty levied under Section 23 of the Act when neither Section 3(3) of the Act nor the declarations contained in Form XVII declaration required that the petitioner must sell the manufactured goods with the State? Whether branch transfer of manufactured goods to branches / depots and sales thereafter would amount to contravention of provisions of Section 3(3) of the Act and misuse of Form XVII declarations attracting the provisions of Section 23 and Section 45(2)(e) of the Act when the manufacturing activity takes place with the State and tax is paid under Section 3(4) of the Act on the proportionate turnover? Held that:- As far as question No. (a) is concerned, the learned counsel for the petitioner fairly concedes that the petitioner has accepted the order and is willing to pay the tax determined. The said question is, therefore, answered against the petitioner. As far as the question No. (b) is concerned it is also answered in favour of the petitioner. As far as the question No. (c) is concerned in the absence of any specific misdeclaration in regard to the value of stock transfer made by the petitioner, we do not find any basis at all for the Tribunal to hold that imposition of penalty under Section 23 was warranted in this case. We are not, therefore, convinced to sustain the said part of the order of the Tribunal. The question of law raised in ground 'C' therefore answered in favour of the petitioner and the order of the Tribunal on that account stands set aside. In the light of the conclusions reached above on the question 'c' and having regard to the fact that the petitioner has complied with the requirements of the tax liability under Section 3(4) of the Act, we do not find any contravention of provisions of Section 3(3) of the Act. Consequently, the question of law raised in ground 'd' is answered in favour of the petitioner. Appeal allowed
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