TMI Blog2010 (7) TMI 783X X X X Extracts X X X X X X X X Extracts X X X X ..... the year 2000-01, in relation to imposition of penalty under section 45A of the Act. - Civil Appeal No. 2267 of 2007 - - - Dated:- 8-7-2010 - CHAUHAN B.S. DR AND SWATANTER KUMAR JJ. T.R. Andhyarjuna and R. Venkataramani, Senior Advocates (S. Sukumaran, Anand Sukumar, Bhupesh Pathak and K. Rajeev, Advocates, with them) for the appellant. M.L. Varma, Senior Advocate (R. Sathish, Advocate, with him) for the respondents. -------------------------------------------------- The judgment of the court was delivered by SWATANTER KUMAR J. -M/s. Malayala Manorama Co. Ltd., Kottayam, purchased printing ink for Rs. 1,00,03,050 from M/s. Quality Ink Manufacturing, Kottayam during the year 2001-02. The ink so purchased was to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Finance Act, 2000 with effect from April 1, 2000 deleting the provision that manufacture items shall be taxable. The impact of the amendment was such that, according to the assessee-firm, the issuance of notice was not proper. It was also stated that amended section does not contemplate any "manufacturing" activity and the word used was "production" and there is a clear distinction between the two. The assessee relied upon the judgment of this court in the case of Aspinwall and Co. Ltd. v. Commissioner of Income-tax, Ernakulam [2002] 125 STC 101; [2001] 7 SCC 525 See [2001] 251 ITR 323., wherein it was held that "manufacture" means use of raw materials for production of goods commercially different from raw materials used. When the en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court, came to the conclusion that as the facts were not in dispute and questions raised were purely legal and are to be tested in view of the judgment of this court in the case of Printers (Mysore) Ltd. v. Assistant Commercial Tax Officer [1994] 93 STC 95; [1994] 2 SCC 434, Whirlpool Corporation v. Registrar of Trade Marks [1998] 8 SCC 1 as well as the judgment in the case of State of H.P. v. Gujarat Ambuja Cement Ltd. [2005] 142 STC 1; [2005] 6 SCC 499, the writ petition was maintainable. However, while laying emphasis that the newspaper would not fall within the expression "goods" under sub-section (3) of section 5 of the Act, the High Court held that the notice issued was proper as form No. 18 which gives benefit of concessional rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had primarily proceeded with reference to the unamended provisions and on an erroneous impression of law that despite amendment, the "goods" will still not include "newspapers". On the contra, Mr. Verma, learned senior counsel appearing for the Department, fairly stated that the amended provisions and their effect have not been considered by the High Court in its judgment under appeal. Even, according to him, the discussion on amendments with particular reference to the word "production" could have some impact on the alternative submission made by the assessee-respondent. However, he submitted that the matter at best can be remanded to the High Court and the notice cannot be quashed as the contentions will still have to be examined by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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