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VAT and Sales Tax - Case Laws
Showing 1 to 20 of 53 Records
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2015 (6) TMI 1265 - AUTHORITY FOR CLARIFICATION AND ADVANCE RULING
Classification of goods - rate of tax on sale of IT Products/Cables and other Apparatus from their Trading Unit located in Free Trading and Warehousing Zone (FTWZ), J Matadee FITZ, Mannur and Vallarpuram Village, Sriperumbudur Taluk, Kanchipuram District, Tamil Nadu to another trading unit in the same FTWZ, developed under Indian SEZ Act, 2005 - HELD THAT:- In order to effect bond-to-bond transactions involving goods or services, trader’s warehouse located ina SEZ/FTWZ has to apply to the Appropriate Customs. Authority having jurisdiction over the area where the SEZ/FTWZ is located, to operate the warehouse and to transact from thereon’ in respect of goods or services. The depositor of the warehoused goods, to transfer the bonded goods from one warehouse located in SEZ/FTWZ to another warehouse located in same or different SEZ/FTWZ, has to get permission from the Customs Authorities so authorised, as per the legal formalities, prescribed by the Customs Act, 1962.
If all the provisions under SEZ Act, 2005 TN SEZ (Special Provisions) Act, 2005, Section-5(1) and (2) of CST Act, 1956 and Section-67 of the Customs Act, 1962, the transfer of bonded goods from one warehouse in FTWZ to another bonded warehouse located in the same FTWZ or another FTWZ is to be treated as having taken place beyond the Customs Frontiers of India not cleared for home consumption and would therefore not falling under the purview of either the TNVAT Act, 2006 or the CST Act, 1956. Summarily, the transfer of warehoused goods in a bonded warehouse located in FTWZ to another warehouse located in same or another FTWZ, is to be treated as sale or purchase effected in the deemed foreign territory, i.e. beyond the Customs Frontiers of India, not liable to tax under TNVAT Act, 2006 or under CST Act, 1956.
It may therefore be clarified that the sale of IT products/cables ‘and other apparatus from their Trading Unit located in Free Trading and Warehousing Zone (FTWZ), J Matadee FTZ, Mannur and Vallarpuram Village, Sriperumbudur Taluk, Kanchipuram District by the applicant -dealer to another dealer who is also having trading and warehousing facility in the same FTWZ or in another FTWZ is eligible for exemption under TNVAT Act, 2006. Dated this the 22nd day of June 2015.
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2015 (6) TMI 1255 - MADRAS HIGH COURT
Violation of the principles of natural justice - rectification application not cosidered - grievance of the petitioner is that when the petitioner had already filed application seeking certain rectification giving three clear reasons and found no response - without issuing any notice on the pending application under Section 84 of the Tamil Nadu Value Added Tax Act, 2006 seeking rectification, ex-parte order passed - HELD THAT:- The learned Additional Government Pleader (T) is unable to support the impugned order. The reason is that when the petitioner's application filed under Section 84 of the Tamil Nadu Value Added Tax Act, 2006 seeking certain rectification on three reasons has not been considered, he has come to this Court by filing writ petition no.10546/2011 and this Court also directed the respondent to pass appropriate order on the pending application dated 31.03.2011, while so, the first respondent without issuing any notice and without giving any reasonable opportunity has passed the impugned exparte order.
The impugned order is set aside and the matter is remanded back to the first respondent to pass a speaking order after giving personal hearing to the petitioner - petition allowed by way of remand.
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2015 (6) TMI 1202 - MADRAS HIGH COURT
Compounding of offence - release of detained goods alongwith vehicle - case of petitioner is that the second respondent has no jurisdiction or authority, as he is not the assessing authority to compound the offence on receiving the amount - Circular No.33/2014 Q4/7752/2014 dated 17.7.2014 - HELD THAT:- Mere reading of Rule 15(1) & 15(4) of the TNVAT Rules says that the officers of Commercial Taxes Department not below the rank of Deputy Commercial Tax Officer shall be the officer prescribed for the purposes of Sections 65, 66, 67, 68 and 69. Although this may be so, the Circular No.33/2014 Q4/7752/2014 dated 17.7.2014 issued by the Principal Secretary/Commissioner of Commercial Taxes, Chennai clearly shows that the movement of goods, if accompanied with a valid invoice, would satisfy the provisions of Section 68 of the TNVAT Act, hence, there is no offence falling under Section 71(5)(a) of the TNVAT Act. Further, when Rule 15(1) totally excludes the operation of Section 72(1)(a) of the TNVAT Act and also for the reason that the movement of goods were accompanied with valid invoices as per Section 68 of the TNVAT Act, the impugned goods detention notices issued by the second respondent in both the writ petitions are liable to be set aside.
The impugned orders are set aside and the respondents are directed to release the goods forthwith to the petitioners on production of a copy of this order - Petition allowed.
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2015 (6) TMI 1201 - MADRAS HIGH COURT
Reversal of ITC - the registration certificates of the sellers have been cancelled - TNVAT Act - HELD THAT:- When the purchases of goods from the these dealers were duly entered and reflected in the accounts and monthly returns filed, giving details of purchasers including the registration particulars, commodity code, value, rate of tax, amount of VAT and category of goods in the Annexure I of the said returns, the respondent, in the impugned orders, have not mentioned anywhere that the purchases of goods from the above dealers are doubtful or incorrect. That apart, the foundation upon which the respondent has passed the impugned orders clearly shows the reason that the certificates of registration of the dealers have been cancelled, reversal of ITC has to be effected against the petitioner.
The said approach adopted by the Assessing Officer is contrary to the settled legal position - the impugned orders are liable to be set aside and accordingly, the same are set aside.
Petition allowed.
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2015 (6) TMI 1178 - MADRAS HIGH COURT
Validity of assessment order - TNVAT Act, 2006 - failure to file Form-WW - Held that:- The petitioner admits the fact that on receipt of the notice issued by the respondent, the petitioner failed to file reply within the stipulated time. Therefore, the respondent was left with no other option except to pass the final orders. Accordingly, he has proceeded to pass final orders. Consequently, as per Section 63A(2) of the Act, he has only proposed to levy a fine of ₹ 10,000/- - But the orders say that he has proposed to levy interest of ₹ 10,000/-.
As there is a typographical error, this Court, while rectifying the error, made it clear that the petitioner has to pay penalty of ₹ 10,000/- under Section 63(A)(2) of the Act.
There are no merits in the petition - petition dismissed.
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2015 (6) TMI 1155 - HIMACHAL PRADESH HIGH COURT
Maintainability of petition - alternative remedy - rate of VAT - H.P. VAT Act 2005 - sale of cellphone chargers and other accessories - Held that: - It is not in dispute that respondents No. 3 and 4 are authorities constituted under the H.P. VAT Act, 2005, and therefore, even if it is assumed that there is an illegal or irregular exercise of jurisdiction the same would not result in the order being without jurisdiction. Even if there has been some defect in the procedure followed during the hearing of the case, it does not follow that the authority has acted without jurisdiction. It may make the order irregular or defective, but the order cannot be a nullity so long as it has been passed by an authority which was competent to pass the order. There is basic difference between want of jurisdiction and an illegal or irregular exercise of jurisdiction and if there is noncompliance of rules of procedure, the same cannot be a ground for granting one of the writs prayed for. In either case, the defect, if any, can according to the procedure established by law be corrected only by a court of appeal or revision.
The writ petitioner has not only an alternative and efficacious, rather a proper remedy under the provisions of H.P. VAT Act, 2005 and therefore, the present petition is not maintainable.
Petition dismissed being not maintainable.
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2015 (6) TMI 1154 - KERALA HIGH COURT
Scope of section 5(2) of the CST Act - installation and for supply of accessories - whether the finding of the Tribunal that section 5(2) of the CST Act is attracted to the transaction in question is correct or not?
Held that: - Section 5(2) of the CST Act provides that a sale or purchase of goods shall be deemed to take place in the course of import of the goods into the territory of India only if the sale or purchase either occasions such import or is effected by transfer of documents of title to the goods before the goods have crossed the customs frontiers of India - In the judgment reported in M/s.Binani Bros. (P) Ltd. v. Union of India [1973 (12) TMI 77 - SUPREME COURT OF INDIA], the question considered was whether the sales by the assessee to Government Department were in course of import and exempted under section 5(2) of the CST Act. Referring to the precedents, the Apex Court held that to occasion import there must exist such a bond between the contract of sale and the actual importation with each link inextricably connected with one immediately preceding it and that without such a bond a transaction of sale cannot be called a sale in the course of the import of goods into the territory of India.
The genuineness of the documents produced are undisputed. Once the genuineness of these documents are accepted, it could definitely be concluded that in the import of the goods by the respondent, there exists a bond between the contract of sale land the actual importation and each link thereof is inextricably connected with one immediately preceding it. This, therefore, shows that in the transaction in question leading to import and the sale of the equipment to MMDC, all the requirements that are laid down by the Apex Court are satisfied.
The order of the Tribunal concluding that section 5(2) of the CST Act is attracted to the case in hand is perfectly legal and does not merit any interference - revision dismissed.
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2015 (6) TMI 1103 - ANDHRA PRADESH HIGH COURT
Sale - whether removal of Beedi leaves from the forest under the trade permit granted under the A.P. Minor Forest Produce (Regulation of Trade in Abnus Leaves) Rules, would amount to sale and attracts liability of payment of Sales Tax?
Held that: - by judgment in the case of State of Andhra Pradesh v. ITC Bhadrachalam Paper Boards Division, Khammam District [2014 (12) TMI 998 - ANDHRA PRADESH HIGH COURT], Court had specifically posed a question in relation to the Bamboo, whether removal of forest produce would amount to sale. This Court held that there is no sale involved - the question is answered in favour of the Assessee and against the Revenue - revision application dismissed.
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2015 (6) TMI 1102 - MADRAS HIGH COURT
Restoration of petition - Natural justice - opportunity of personal hearing u/s 22(4) of the TNVAT Act? - Held that: - on the limited score that the impugned orders have been passed in utter violation of Section 22(4) of the TNVAT Act, which contemplates an opportunity of personal hearing to the petitioners, this Court without going into the merits of the matter, setting aside the impugned orders, remand the cases back to the file of the respondent for fresh consideration on merits and in accordance with law, after giving an opportunity of personal hearing to the petitioners - petition allowed.
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2015 (6) TMI 1101 - RAJASTHAN HIGH COURT
Rectification application u/s 37 - carpet - exemption from tax - unaccounted stock of carpet - An application u/s 37 was moved prima facie on the plea that order u/s 72(3) of compounding the case was not proper and that a mistake apparent on the face of record has crept in and it needs rectification - Whether the carpets manufactured by the petitioner are not exempt from tax as per the judgment of Supreme Court in Ess Dee Carpet Enterprises v. Union of India [1989 (12) TMI 353 - SUPREME COURT] decided on December 7, 1989? - Held that: - rectification implies the correction of an error or removal of defects or imperfections and could not be used to appreciate the evidence of new facts which were not placed earlier. Rectification implies an error, mistake or defect which after rectification is made right.
The order dated August 16, 1997 attained finality and at least there was no mistake apparent under section 37 in the order dated August 16, 1997 which needed rectification and this was rightly rejected by the assessing officer. The assessee in the garb of application under section 37 in fact wanted review of the order which is impermissible.
Reliance was placed upon the judgment rendered in the case of Ess Dee Carpet Enterprises v. Union of India [1989 (12) TMI 353 - SUPREME COURT] which in my view, is distinguishable, and even does not touch upon the controversy in hand, inasmuch as in that case, the honourable apex court was considering matter relating to the Employees Provident Fund and Misc. Provision Act - Even the said judgment only speaks of textile and how carpet comes within the definition of "textile" has even not been pointed out by the counsel for the assessee during the course of arguments. Merely mentioning that carpet is a textile and is exempt, does not bear out either from the record or from the submissions made by the counsel for the petitioner.
Once the excess stock was found, admitted by the assessee an application for composition (compounding) having been moved which was accepted and attained finality, no mistake has been noticed at least in the order passed on August 16, 1997 which in my view, has rightly been rejected by the assessing officer and accordingly the present petition fails - decided against the Assessee.
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2015 (6) TMI 1058 - KARNATAKA HIGH COURT
Demand of sales tax / vat on sale of aviation turbine fuel (ATF) to foreign aircrafts - Constitutional validity of notification - Held that:- there may be various other airlines originating from foreign countries which are not parties to the said convention, but in order to identify those airlines which originate from the countries which are parties to the convention,such a declaration is required. Therefore I do not find that notification dated December 3, 2003 is illegal, or it lacks competence and it is contrary to the provision of the Central enactment. On the contrary, the requirement of issuance of declaration by a purchaser of ATF and lubricants, i.e., aircraft of a foreign country which is a party to the Convention on International Civil Aviation or which has entered into air services or air transport agreement with India and operating international air services to or from India would get endorsed. Therefore there is a distinct purpose in insisting for production of such declaration made by the State Government and hence the contention raised by the petitioner's counsel on the vires of the said notification is without any substance.
Validity of assessment orders - Held that:- in respect of certain transactions made to certain airlines there are declarations produced and in respect of other transactions of the very same airline, it may not be produced is the submission of the petitioner's counsel. It is also noted that in respect of airlines of certain foreign countries no declaration may have been produced. This aspect would have to be examined and there may be certain cases where the declarations have not been produced with regard to certain aircrafts.
Petitioner would have to be given an opportunity to produce evidence pointing out the list of countries which are parties to the convention or which have entered into agreements with India and in respect of whose aircrafts thesale of ATF and lubricants have taken place to the satisfaction of the third respondent/authority. If the third respondent is satisfied on the material to be produced by the petitioner, then it could consider the grant of exemption in respect of those transactions. But if the third respondent is of the opinion that the additional materials to be produced by the petitioner are not sufficient to come to a conclusion that an exemption would have to be granted, then in that case it can grant some time to the petitioner to produce requisite declarations from foreign airlines and thereafter proceed to consider the matter afresh and pass a fresh order in that regard. - Matter remanded back.
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2015 (6) TMI 1055 - MADRAS HIGH COURT
Validity of service of notice - Admittedly, the same was returned with a specific postal endorsement ''LEFT'' since the said office was closed during the month of May, 2011. Thereafter, the respondent has chosen to send the above notice by registered post to Thiru Ajay Metha, Director, No.A20, Anand Niketan, New Delhi-21 and the same also appears to have been served on the above address. Therefore, the defence raised by the learned Counsel for the petitioner that there was no notice served on the registered office of the petitioner and served only at his residential address cannot be construed to be a value service of notice is rejected.
When the respondent with all responsibility has served a notice at the residential address of the Director of the petitioner's company, it is the duty cast upon the petitioner to respond to the said notice by filing a detailed reply. But the petitioner has failed to file any objections.
Writ Petition fails and the same is accordingly dismissed.
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2015 (6) TMI 1054 - ANDHRA PRADESH HIGH COURT
Levy of purchase tax u/s 4 - agriculture product processors i.e. (1) rice millers, or (2) dhal millers, or (3) soyabean oil millers, or (4) cotton millers - whether in the nature of levy on farmers - Held that:- in the light of the provisions under Section 4 (4) of the VAT Act and under the CST Act, in K.G.F. COTTONS(P) LTD. v . ASST. COMMR. (CT) (T AND AP) [2015 (5) TMI 804 - ANDHRA PRADESH HIGH COURT] matter remanded back.
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2015 (6) TMI 1050 - ORISSA HIGH COURT
Whether the petitioner can take the benefit of copy of money receipt issued to the transporter carrying his goods by the check gate officer while assessing the tax payable by the petitioner - Held that:- the order of the learned First Appellate Authority confirming the order of the learned Assessing Authority with the observation that Xerox copies of documents are not admissible without following the procedure, as depicted under the Circular No.25118/CT dated 18.12.1999 issued by the Department, by interpreting the same for its applicability for the unregistered dealer is equally bad in law. The observation of opposite party No.2 that Xerox copy of any document is inadmissible in legal proceeding unless it is certified by the appropriate authority is also equally beyond the legal principles before the quasi-judicial authority. Opposite party No.2 has not properly evaluated the copies of documents produced by the petitioner for which his reasons for rejecting the appeal and confirming the order of the Assessing Authority is also vulnerable one. From the foregoing discussion, it must be observed by us that the observation of opposite party Nos.1 & 2 by not accepting the copies of receipts issued to the transporter in compliance with the circular issued by the Department in 1999 is contrary to section 7(4) of the O.E.T. Act, 1999 (unamended) and, as such, the petitioner is entitled to the benefit of such adjustment.
Validity and legality of impugned orders - reasonable opportunity has been given to the petitioner in accordance with law to produce evidence - Held that:- reasonable opportunity to produce the original Books of Accounts with original money receipt from the transporter has not been afforded to the petitioner because the impugned order does not indicate that the petitioner was given opportunity to produce the Books of Accounts and the original money receipts in support of his claim for adjustment of payment at the check gate. Mere observation of the learned Assessing Authority that the petitioner was given opportunity to produce the satisfactory proof for completeness and correctness of the document submitted is without any compliance as per law. On the other hand, we are of the opinion that reasonable opportunity has not been given to the petitioner to produce satisfactory proof of payment of tax to the transporter or incidence of payment of tax towards adjustment of tax at the check gate while submitting the return for the year 2001-2002.
Maintainability of writ petition - Held that:- it is found that the question of enforcement of any of the fundamental rights, in the present facts and circumstances, does not arise. Even if opportunity was not given to submit the documents, but there was hearing of the case and judgment has been passed and, as such, it cannot be said that principle of natural justice is not followed. In view of the discussions in point Nos.(i) & (ii), we are of the considered view that there is no compliance with the provisions of the O.E.T. Act and the circular issued by the Department under the relevant rules framed under the said Act. Therefore, it must be held that the impugned orders of the Assessing Authority and the Appellate Authority have been passed without jurisdiction. Although alternative remedy as per the decision reported in Titaghur Paper Mills Co. Ltd. Vs. State of Orissa [1983 (4) TMI 49 - SUPREME Court] is available, but by virtue of the later decision of the Hon’ble Apex Court in the case of Haribanslal Saharia and another Vs. Indian Oil Corporation Limited and others [2002 (12) TMI 564 - SUPREME COURT], entertaining the writ petition is not barred, even if alternative remedy is available. It is, therefore, held that the present writ petition is maintainable.
The impugned orders are quashed and the matter is remitted back to the opposite party No.1 with a direction to reassess the incidence of payment of tax for the year 2001-2002 within a period of three months from the date of receipt of copy of this order after giving reasonable opportunity to both parties to produce their respective evidence. - Petition disposed of
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2015 (6) TMI 1049 - ANDHRA PRADESH HIGH COURT
Imposition of penalty - Section 10(A)(1) of the Central Sales-Tax Act - No transit sale also under CST - Misuse of C forms - Held that:- the Tribunal found that there was a bit of uncertainty in relation to the transaction whether the same is required to be assessed under C.S.T. or A.P.G.S.T. Act. Apart from that the Tribunal also found that there was no intention on the part of the assessee which is a requirement at the relevant point of time for levy of penalty. The Tribunal also relied on the principles laid down by this Court in Ravi Enterprises v. State of Andhra Pradesh [1988 (3) TMI 419 - ANDHRA PRADESH HIGH COURT] . Further, the transaction relates to the assessment year 1983-1984 whereas the penalty proceedings came to be initiated on 09.08.1992 i.e. after a long lapse of nine years. Therefore, the Tribunal had considered various aspects on record and gave a finding which is not challenged before this Court. The Tribunal, being the last finding authority and in the absence of such conclusive finding being challenged raising a specific question of perversity, we do not find any questions of law much less substantial questions for adjudication in the present case. - Decided against the revene
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2015 (6) TMI 1048 - BOMBAY HIGH COURT
Rectification appeal - mistake apparent on the face of the record - Held that:- Commissioner ought not to have impugned the ultimate direction. Today, the position is that the rectification application of the dealer is allowed. The dealer had partly succeeded before the Tribunal and had persuaded it to remand the matter to the Joint Commissioner. That initial order dated September 12, 2012, is wholly set aside. The Tribunal has directed that the appeal will have to be heard afresh on merits and in accordance with law. Both parties will have adequate opportunity of placing their versions when the appeal is heard afresh. We do not see any prejudice to the Commissioner and rather the Department of Sales Tax. We are surprised that the Commissioner has approached this court.
Commissioner does not impugn the initial order of remand and partial success of the respondent in the appeal. It is the dealer-respondent who approached the Tribunal and by filing rectification applications. In such circumstances, the Commissioner could not have instituted the present writ petition. Moreso, when there is presently no loss of revenue nor is any serious prejudice caused to the Revenue. The Commissioner/Revenue will have full and complete opportunity to satisfy the Tribunal when it hears the appeal afresh that the order passed by the Joint Commissioner on April 21, 2011 is in accordance with law. In such circumstances, this writ petition has no merit and is completely misconceived. - Decided against the Revenue
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2015 (6) TMI 1043 - SIKKIM HIGH COURT
Whether the transfer of cement, steel and explosives by the Petitioner to the contractors vide their respective agreements was a ‘sale’ under Section 2(m) of the Act, 1983 - Held that:- for the purpose of instant case, sub-clause (b) and (d) of clause (m) of Section 2 of the Act, 1983 are relevant. Sub-clause (b) talks about the transfer of goods involved in the execution of works contract and sub-clause (d) talks about the transfer of the right to use any goods for any purpose for cash, deferred payment or other valuable consideration. This clearly means that in addition to the main definition of ‘sale’ all such events of transfer, delivery or supply of goods by one person to other person in any one of the above ways under sub-clauses (a) to (f) would be a ‘sale’.
Various clauses of agreement shows that the said goods were supplied to the contractors on a fixed rate, and were to be consumed in the work as per approval and then the deductions of their sale price were to be made. Thus, it is clear that the above event of supply of specified goods were clearly covered under sub-clauses (b) and (d) of clause (m) of Section 2 of the Act, 1983 and were ‘sale’ within the meaning of such clauses. As we have already held that, there was transfer of goods involved in the execution of works contract with the transfer of right to use the goods. Thus the taxation authorities have rightly held that the said instances were ‘sale’ within the meaning of Section 2(m) of the Sikkim Sales Tax Act, 1983 and the assessee was liable to pay the sales tax on such transactions. - Decided against the petitioner
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2015 (6) TMI 1017 - TRIPURA HIGH COURT
Demand of tax - Seller of furniture and rubber products - Purchased tyres, tubes and flaps, i.e., rubber products but no stock was found in godown which meant that petitioner had sold off these entire rubber products - Held that:- when a revision has been filed by the petitioner he cannot pursue this remedy of writ. Under the statute the petitioner is bound to deposit 50% of the demand raised and no exceptional reason has been found for why the petitioner should be exempted from depositing 50%. It is to be said so because the petitioner has not denied the transactions but has only stated that he was under the impression that no tax is to be paid. Whether this version of the petitioner is to be believed or not is not for us to decide and the Commissioner shall decide this after hearing the petitioner and/or his counsel. - Petition disposed of
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2015 (6) TMI 1016 - BOMBAY HIGH COURT
Whether the Tribunal was correct in holding that, instead of the entry A47 waiving tax on purchase in excess of given percentage, the dealer was liable to purchase tax at two per cent and not at reduced amount of 0.5 per cent. or 1.55 per cent, as applicable at relevant time under the entry A47 while section 41 read with section 13AA of the Bombay Sales Tax Act - Importer/exporter of diamonds and manufacturer of gold jewellery - Assessee had transferred the manufactured jewellery to its branches and, therefore, in respect of purchase of gold bullion, which were used in the manufacture of said jewellery, the authority levied purchase tax under section 13AA at two per cent - Held that:- Sections 13 and 13B make a specific reference to the rate of purchase tax in respect of goods covered under Schedule B or Schedule C. Perusal of Schedule B and Schedule C would also reveal that the rate of tax is specifically provided for each of the entries. The relevant clause of the Schedule to the notification, would also reveal that the notification refers to sale or purchase by a registered dealer of goods covered by entry 10 in Part I of Schedule C. Part I of Schedule C specifies the rate of tax at two per cent.
By applying the principles of harmonious construction, the notification will have to be construed to apply to the rate of tax as specified in entry 10 of Part I of Schedule C of the said Act. The rate is specifically prescribed at the rate of two per cent. It is found that, what has been provided by the notification is exemption of tax, in excess of what is provided under the said notification, from the tax payable as specified by entry 10 of Part I of Schedule C of the said Act. The Legislature has specifically provided for a purchase tax, at the rate of two per cent in addition to the tax payable under the other provisions of the Act, when the requirements as provided under the said section are fulfilled. The tax as provided in section 13AA, is an additional tax payable in certain circumstances as carved out in the said section, so as to compensate the loss of revenue. Therefore, there is no conflict between any of the provisions of the said Act if the principles of harmonious construction is applied thereto.
Whether the Tribunal was justified in holding that the said exemption on purchase will not cover, purchase tax levied under section 13AA, unless specific exemption entry is inserted by Government, even though the entry A47 cover exemption from tax on purchase - Held that:- if the contention of the assessee is to be accepted, then the very purpose for which section 13AA is brought on the statute book would be defeated. By availing of the benefit of notification by paying the meager tax, the assessee would purchase the said goods, use them for manufacture by using State infrastructure and then take away finished goods, from the State to other State and thereby deprive the State its revenue, which it would have earned by way of sales tax, at much higher rates, if the goods were sold in the State. Also then the purchaser who purchases raw material at concessional rate, uses them for manufacture in the State of Maharashtra and also sells them in the State will be required to pay purchase tax at the rate of 0.5 per cent. and the sales tax at the rate of four per cent. as provided in entry 98 of Part II of Schedule C and thereby required to pay total tax of 4.5 per cent. for the financial year 1999-2000, whereas the purchaser like the assessee, who purchases raw material from the State of Maharashtra, manufactures goods in the State of Maharashtra using the State infrastructure, would be required to pay only 0.5 per cent. of purchase tax for the said assessment year.
Therefore in view of the decision of Hon'ble Apex Court in the case of Hotel Balaji v. State of Andhra Pradesh [1992 (10) TMI 240 - SUPREME COURT OF INDIA], the tax as levied under section 13AA, is liable to be levied except in the three situations i.e., (i) sale of manufactured goods within the State, (ii) inter-State sale and (iii) export sale of manufactured goods, but dispatches it to his branch or to his agent, situated outside State, it cannot escape from the liability of tax at the rate of two per cent., as is leviable under section 13AA. - Matter disposed of
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2015 (6) TMI 1009 - RAJASTHAN HIGH COURT
Leviability of penalty under section 78(5) of the Rajasthan Sales Tax Act, 1994 - Whether mens rea is required to be proved - Mandatory declaration form ST-18C not produced at the time of inspection - Held that:- the declaration form, which was obtained by the assessee, was available with them, and which was produced immediately on demand, and even on the same day of intercepting the vehicle. Also he appeared before the authorized officer himself on the same day and produced declaration form ST-18C, therefore, once it is a finding of fact given by the assessing officer that the declaration form was produced on the same day on June 23, 1999 when the vehicle was intercepted, in the light of the judgment rendered by the honourable apex court in the case of State of Rajasthan and another Versus DP. Metals (and other appeals) [2001 (10) TMI 881 - SUPREME COURT OF INDIA] and in the light of the rule 54 of the RST Rules, which postulate that principle of natural justice demand that an opportunity should be given and therefore, it is a clear cut case where the declaration form, though mandatory, required to be carried with the vehicle but the driver/vehicle incharge forgot to carry the same, which was immediately produced on demand that too on same day.
Therefore, in the light of judgment rendered by Honourable Apex Court in the case of Guljag Industries v. Commercial Taxes Officer [2007 (8) TMI 344 - SUPREME Court] and Larger Bench of this court in Assistant Commercial Taxes Officer v. Indian Oil Corporation Ltd. [2015 (11) TMI 1078 - RAJASTHAN HIGH COURT], mens rea is not essential and and the observation regarding mens rea needs to be reversed. Also the penalty has not to be levied. - Decided against the revenue
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