Home Case Index All Cases VAT and Sales Tax VAT and Sales Tax + HC VAT and Sales Tax - 2016 (8) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2016 (8) TMI 299 - HC - VAT and Sales TaxLevy of entry tax – Low Sulphur waxy residue brought from abroad – low Sulphur fuel oil – legislative competence of the state of Maharashtra – revenue neutral exercise or not - Held that:- so long as the import for consumption, use or sale within the local area attracts the levy, it is immaterial whether the goods originally arrived from outside the country or from another state within the country. The provisions of the Act read together as a whole so also harmoniously lead to the conclusion that the State is not denuded of its power to impose entry tax on the import of goods from outside the country. The words “outside the State” cannot be restricted in their application to the boundaries or territory of a State. That would mean entry tax is not leviable on goods imported from abroad but brought within the local area for consumption, use or sale therein though such a tax is leviable on the goods brought in from other States within the territory. The latter Act of bringing the goods from other parts of the country or from other States within the same country is also an import within the meaning of the Act. We cannot, therefore, restrict the definition of the words “import” and “importer” in the manner suggested by Mr.Dada. His second contention must, therefore, fail. - Constitutional validity upheld - Decided against the assessee. Revenue neutrality - it was contended that the purpose of entry tax is to neutralize difference between sales tax in the importing State and the sales tax in the originating State - Held that:- proviso to Section 3 does not dilute or read down the definition of the terms “entry of goods”, “import” and “importer”, but it only clarifies that if the import is by the importer who has purchased the goods in another State or Union Territory of the country and in that area these goods when purchased attract general sales tax, then, the amount of such tax shall be reduced from the levy of entry tax. - Our conclusion is also reinforced by the language of sub-section (5) of section 3 which states that no tax shall be levied on the specified goods by the dealer registered under the Maharashtra Value Added Tax Act who brings such goods into any local area for the purpose of resale in the State or sale in the course of inter-state trade or commerce or export out of the territory of India. - Therefore, if they are imported from abroad but are not consumed, used or sold within the local areas after being brought in, then, the entry tax is not leviable. Therefore, we do not see any substance in the contentions based on the language of the second proviso to sub-section (1) of section 3 of the Maharashtra Entry Tax Act. - Argument of neutrality rejected - Decided against the assessee. Restriction on freedom of trade - violation of the mandate of Article 301 of the Constitution of India - Held that:- We have not been shown anything from this judgment to enable us to hold that by mere levy of entry tax the mandate of Article 301 is violated. Further, the petitioners have not anywhere pleaded that even after the State amended the statutes and provided for a scheme of refund / rebate / set off, the so-called barrier still continues, or another barrier has been created. - Thus, merely on the strength of the judgment in the case of Eurotex Industries [2004 (1) TMI 651 - BOMBAY HIGH COURT] it would not be possible to consider the question. - decided against the assessee. The petition does not aver in specific words that the petitioner registered themselves for the purposes of the Entry Tax Act and that being liable to pay the entry tax, they filed their returns-cum-challans. Thus, returns-cum-challans were to be verified and scrutinized for the purpose of amount of tax due from the petitionerimporter. Since the petitioner no. 1 is a registered importer that rule 8(1)(iii) would be the applicable rule. It is not open to the petitioner to raise the bar of limitation because the notice for assessment under the Entry Tax Act in Form No. 5 to the Entry Tax Rules was issued to the dealer-petitioner on 11th June 2013. A copy of that notice is termed by the petitioner No.1 itself as a show-cause notice. The notice is in Form No. 5 and must refer to the returns-cum-challans filed by the petitioner. However, if the order of assessment is carefully perused and though made in Form No. 9 it does not refer to the details of the return. Scope of the entry in the schedule - classification - Held that:- When the entire Schedule was substituted retrospectively and there is also Entry No.12 which deals with furnace oil, including heavy furnace oil and residual furnace oil which is also included in petroleum fuel oil, then, NO ONE can enter into this factual controversy. It involved and included the product of the petitioners and if there is entry which takes care of it, then whether it is Entry No.12 or 13 should not be a matter of concern. The entries in the Schedule could describe the product as furnace oil and include therein heavy furnace oil and residual furnace oil, but to rule out any confusion or doubt even in relation to petroleum fuel oils so long as the description of a particular product or goods is of that category, then it would also include heavy furnace oil and residual furnace oil. Thus, no controversy. Unless the petitioners discharge their tax liability at their instance, no consideration to the plea of revenue neutrality – appeal dismissed – recovery of tax not stayed.
|