TMI Blog2014 (7) TMI 194X X X X Extracts X X X X X X X X Extracts X X X X ..... s of its buyers. On the other hand, it will have to be stated that so long as the amount lies with the Department, it would be the responsibility of the Department to implement the order of the refund and only thereafter can expect the concerned assessee to ensure further refund of such amount to the actual buyers. There was no ground made out for imposing penalty under section 22(2) of the Act, on the ground of unjust enrichment on the part of the revision petitioner. - Decided in favor of assessee. Regarding penalty on account of certain omission between return and books of accounts - Held that:- When factual findings relating to the omissions came to be noticed by the assessing authority based on the books of accounts maintained by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s). While the appeal was pending, the appellate authority issued a show-cause notice dated July 18, 2002 as to why the penalty proposed under sections 12(3)(b) and 22(2) of the Act, should not be levied. The revision petitioner submitted its detailed expla nation on October 23, 2002. By order dated November 5, 2002, the lower appellate authority took the view that since there was no proof of refund of the excess tax collected to the buyers, to that extent the revision petitioner had unjust enrichment of the excess tax collected and therefore, levy of penalty under section 22(2) of the Act, was made, as proposed by the assessing authority. In regard to the levy of penalty under section 12(3)(b) of the Act, also, the lower appellate authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such deductions were only to an extent of ₹ 51,08,305. Similarly, the assessing authority has also noted a misuse of form XVII to an extent of ₹ 1,00,525.34 for the purchase of chemicals and foundry materials. He has also noted other variations as per the books and the returns in paragraph I(iv)(a) and (b). When such factual findings relating to the omissions came to be noticed by the assessing authority based on the books of accounts maintained by the revision petitioner and the returns submitted by it, the ultimate conclusion relating to such omis sions would be nothing, but deliberate suppression made by the revision petitioner. When once such a conclusion is inevitable, the levy of penalty under section 12(3)(b) of the Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cent tax plus 0.45 per cent surcharge plus 2.50 per cent additional sales tax against form XVII according to the direc tions of the Special Commissioner of Commercial Taxes. (b) In the meantime, the Supreme Court held in [1995] 99 STC 87 in the case of Vasantham Foundry v. Union of India held that the rough castings are to be assessed as declared goods, and ultimately set aside the circular of the Commissioner of Commercial Taxes. This fact has resulted in the refund of abnormal additional sales tax and surcharge. The reason for the balance of tax was arisen, due to the wrong posting of credits of tax into surcharge and additional sales tax. The Commissioner of Commercial Taxes also following the deci sion in Vasantham Foundry v. Uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Deputy Commissioner at page 14 discloses that even as on the date of passing of its order viz., November 5, 2002, the excess tax collected was not factually refunded to the revision petitioner. It would be worthwhile to refer to the statement found in the order of the Appellate Deputy Commissioner, which is to the following effect: Here in this instant case, the appellant s authorised representative argued that they do not know whether the Department is going to refund it or not. Hence, they were not able to make any other to refund the excess collected from their customers is not a well founded. The above referred to statement found in the order of the Appellate Deputy Commissioner only goes to show that as on that date the exce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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