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2021 (3) TMI 525 - HC - VAT and Sales Tax100% EOU - Shortage of stock - transit/handling losses of iron ore amounting to 5% of its total export clearances - whether it is within reasonable limits, despite there being no evidence submitted by the respondent to show the actual transit/handling losses? - validity of restriction of claim of transit/handling losses or iron ore to 0.92% and 1% of the Respondent's total export clearances, respectively based on the average transit/handling losses of iron ore claimed by leading mining companies such NMDC Ltd., and MSPL Ltd.? HELD THAT:- From perusal of the order passed by the prescribed authority and the First Appellate Authority, it is clear that both the authorities have recorded a finding that transit / handling loss is inevitable while transportation of iron ore fines and lumps. It is well settled legal proposition that an order passed by an authority under one enactment cannot be basis for levying tax under another enactment specially when event and point of levy are different under those enactments. The point of levy of excise duty is removal of goods whereas, point of levy under the Act is on sale. Therefore, an order passed by the Excise Authority cannot lead to the conclusion that there was a sale leviable to tax under the Act. It is pertinent to note that transit / handling loss was claimed by the respondent approximately at the rate of 5% for a period of five years, which according to the finding recorded by the authorities under the Act at the rate of 1% per year was reasonable - there are no ground to interfere with the order passed by the tribunal. The substantial questions of law are answered against the petitioner and in favour of the respondent - Petition dismissed.
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