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2019 (7) TMI 717 - HC - VAT and Sales TaxExemption in respect of turnover - turn over involved in the import of equipments from the foreign country - Section 5(2) of the CST Act - reversal of estimation of turn over made on the basis of Rule 9(2A) (a) of the KVAT Rules - input tax credit - HELD THAT:- The assessing authority had not perused the terms of the contract or the purchase order or the documents with respect to the import. Further, we take note of the contradictions on the factual findings with respect to reimbursement of the customs duty. In such circumstances, we are of the considered opinion that the materials available on record need to be re-evaluated in order to arrive at a conclusion as to whether the import was made pursuant to a contract between the awarder and the foreign company and as to whether the import was in pursuance of a purchase order issued by the awarder etc. It is also need to ascertain whether the goods were transmitted in the name of the awarder and whether it was cleared on behalf of the awarder, M/s KRL - the Appellant Tribunal can be directed to reconsider the above aspects and to arrive at a clear finding on the said aspect. Sustainability of the return based on estimation of turnover relying on Rule 9 (2A)(a) - HELD THAT:- In Rule 9(1) the total turnover of a dealer engaged in works contract is stipulated as the contract amount received or receivable. Under subrule (2) of Rule 9, in clause (b) it is provided that, in relation to a works contract in which the transfer of property in goods had taken place not in the form of goods, but in some other form, the value of such goods at the time of incorporation into the work shall be considered as total turnover. Under sub-rule (2A)(a) of Section 9, it is provided that, for the purpose of computing the turnover as provided under sub-rule (2)(b), the value of the goods transferred in execution of the works contract shall not be less than the purchase value and shall include the incidental char instantly purchase mentioned therein. Based on the above provisions, it is contented by the learned Government Pleader that the assessing authority had estimated the turn over by taking note of the provisions contained in Rule 9 (2A) (a). It is contended that, the finding of the Tribunal in this regard is illegal and incorrect. It is pointed out that the Rule quoted by the Tribunal is Rule 9(3) (in the un-amended form) and not Rule 9(2A) (a) - Since we have decided to remit the matter to the Tribunal to look into the question of exemption with respect to the goods imported, we think it only appropriate to direct the Tribunal to consider and decide this issue also afresh, on the basis of the relevant Rule applicable. Denial of the claim for input tax credit - HELD THAT:- The question remains as to whether the credit of input tax against the output tax can be denied based on the fact that the Form of invoice on the strength of which purchase was made by the assessee company was drawn in Form No.8B. Since the other questions are remanded for fresh decision, we are of the opinion that the above issue also can be left open for consideration and for a fresh decision by Appellate Tribunal. The tribunal shall restore the appeal on its file and dispose of the same afresh, after affording opportunity of hearing to both sides - petition allowed by way of remand.
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