Subscription   Feedback   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Articles Highlights TMI Notes SMS News Newsletters Calendar Imp. Links Database Experts Contact us More....
Extracts
Home List
← Previous Next →

Tata Steel Ltd, Essar Steel Orissa, M/s. Acc ltd., M/s. Jayshree Chemicals Ltd., M/s. GMR Kamalanga, Indian Metals And Ferro Ltd, Hindalco Industries, Rungta Mines Ltd, Mangillall Rungta, Nagar Export Pvt, Ltd, Mikage Stone Develop, M/s. Bharati telemedi, Mahaswari Coal, M/s. Acc Ltd., IFGL Refractories, M/s Adani Enerprise, Emami Paper Mills, M/s Vedeant Aluminium, Dishnet Wireless Ltd, M/s Vyom Trade Link Versus State of Odisha and others

2012 (11) TMI 789 - ORISSA HIGH COURT

Constitutional validity of levy of entry tax on imported goods - Entry Tax under Orissa Entry Tax Act,1999 - Whether the imposition of tax on goods purchased from outside the country is ultra vires the Constitution - held that:- The Act is a tax in lieu of octroi incident of which are similar to that of entry tax. When the levy of octroi on imported goods was upheld by different courts, there is no reason why entry tax on the imported goods cannot be upheld. - The entry tax is, thus, in essence .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

of provision of the Orissa Entry Tax Act itself shows that entry tax is not leviable on the goods imported from outside the country - Held that:- By applying the principle of interpretation of the taxing law that charging section is not to be controlled by subservient components, the definition “entry of goods” cannot be taken help to urge that the entry tax on imported goods cannot be levied. - the argument that entry tax is not leviable on the goods imported through buyers is attractive but is .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ain raw materials and spares, as described in paragraph-6, which have been imported and purchased from other States out of the country by M/s IFGL Refractories (W.P.(c) No.7 of 2008)having carefully examined the items described in the 3rd sub- paragraph of paragraph 6 - held that:- items not included in the schedule are not liable to entry tax. - Decided in favor of assessee. - WRIT PETITION (C) Nos. 15519/2010, 5737/2010, 7975/2011, 18577/2011, 5186/2012, 5187/2012, 1087/2008, 2959/2008, 3562/2 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

5187 & 6982 of 2012) - M/s Bibeka Mohanty, S.K. Mishra, S.K. Jena, N.R. Mohanty, C.R. Dash, M.Roul & M. Wright (WP(C) 18577/2011, 3515/2008 &, 579/2010 - M/s Pranaya K. Harichandan CH.M.R. Mishra, B. Behera (WPC 3010 & 5101 of 2012) - M/s Subash Chandra Lal, Sumit Lal & Sujit Lal (WP(C) 7 & 13978 of 2008, & 5764 of 2007 - M/s Sidhartha Ray and S. Dey (WP(C) 7975 of 2011) - M/s S. Kanunga, CH.S. Mishra, R.N. Pattnaik, N.R. Mohanty, M/s Bibek Mohanty, S.K. Mishra, B.K. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

for establishing a plant in the State of Odisha? (iii) Whether the entry tax can be levied on certain raw materials and goods imported from outside the country and purchased from outside the State when such materials have not been listed in the schedule appended to the Orissa Entry Tax Act? and (iv) Whether the Orissa Entry Tax Act, 1999, hereinafter referred to as the Act for brevity, is violative of Entry 83 of List I of Seventh Schedule and Article 246 of the Constitution of India. 2. The pet .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e authority. They have been registered under the OVAT Act, CST Act and the Orissa Entry Tax Act, 1999 and have been allotted TIN number by the Sales Tax Officer. They bring various goods including scheduled goods for their plants from within the State and also from outside the territory of India by way of import. The materials so purchased from various countries are duly supported by bills and other documents, which have been incorporated in the accounts of the petitioner-Companies. 3. The petit .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tion 3 of the Act may not be controlled by the above provision. It is contended that various clauses of Section 2 are inalienable limbs of Section 3, which are not measure of tax but define expression to make impost with element of certainty and definiteness. The petitioners claim that under Article 286 of the Constitution of India there has been a restriction for imposition of tax on the sale or purchase of goods, where such sale or purchase takes place in course of import of goods, into or exp .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d reliance on the reported cases of Tata Iron & Steel Company Ltd. Vs. State of Jharkhand and others, (2007) 6 VST 587 (Jharkh), FR. William Fernandez Vs. State of Kerala and others, (1999) 115 STC 591(Ker), Thressiamma L. Chirayil Vs. State of Kerala, (2007) 7 VST 293 (Ker) as well as the judgment rendered by the Full Bench of the Orissa Sales Tax Tribunal in the case of Hindustan Aeronautics Ltd. Koraput Vs. State of Orissa and contended that in all the above cases the various High Courts .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

008 (M/s Emami Paper Mills Ltd. vs. State of Orissa and others), the petitioner claims that it is an incorporated company and has a paper manufacturing plant at Balgopalpur in the district of Balasore. They are producing newsprint, various writing and printing paper by using 100% recycled waste papers. The company has stopped rice straw from April, 2006 and, therefore, now using 100% waste paper as raw materials for manufacturing paper. They decided to expand their plant. Thus, for additional ca .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ooted out from USA and established in India). Besides that the petitioner also imports other machinery from the other countries and the said imported machinery and spares parts entered into the country through different ports and are released by the petitioner on payment of the import duty. The petitioner claims that the plant and machinery are brought in a knock down condition in ships and are unloaded in Calcutta Port and or other ports and are released after payment of import duty levied unde .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ter dated 25.03.2006 the opposite party no.3 called upon the petitioner to submit a statement showing the name of goods imported by the petitioner from the USA. This fact is subject matter of W.P.No.12622 of 2006 and the same is pending consideration before this Court. The petitioner protested that it is not liable to pay entry tax on the plant and machinery brought from USA in course of import and, further, since the plant is not a schedule good, the same cannot be subjected to entry tax under .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

W.P.(C) No.12622 of 2006, which was admitted by order dated 08.10.2006 and further direction was given that the petitioner should not be asked to pay any amount on entry tax in view of the payment of the customs duty by the petitioner. Petitioner claims that the paper plant is a mega plant and it had to purchase different types of machinery, its spare parts from different manufacturers in other States of the Country. These machinery and spare parts are of definite specifications and are neither .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

different States in as much as those are neither scheduled goods nor can those goods be subjected to levy of entry tax, the opposite party no.3 has assessed the petitioner to tax in respect of these goods both imported from outside the Country and purchased from outside the States (CST Goods) and imported into the local area of Balasore. The opposite party no.3 has completed assessment of the years, 2005-06 and 2006-2007 under the Act and in the said order of assessment the opposite party no.3 h .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

utside the State as they are not included in the Schedule of the Act. 6. In W.P.(c) No.7 of 2008 ( M/s IFGL Refractories Vs. State of Orissa and others), the Company is established as an import expand project. Commercial production was started in March, 1993. Since then, the petitioner has been continuously expanding capacity thereof by installing and erecting plants and machinery both indigenous and imported. The petitioner s policy is to identify the customers need, design and develop products .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ported items are received either at Kolkata Port or at Kolkata Airport wherefrom they are transported to the petitioner manufacturing facilities under way bills in the Orissa Sales Tax Rules/VAT Rules by opposite party no.3 For carrying manufacturing activity and production of item referred above, i.e. Ladle Shrouds, Sub entry Nozzels, Monoblock Stopper, Tundish Nozzle, Slide Gate Plates etc, some of the raw materials and ancillary goods are not available nor are they manufactured in India. Cons .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

yment thereof under protest. The petitioner claims that the company is not liable to pay entry tax as the same is not falling within the definition of scheduled goods as identified in the Act, but the opposite party no.3 has threatened to stop issuing way bills and C forms for which the company has been paying entry tax on purchase. Besides, the raw material imported from other countries, the petitioner also uses raw materials available in other States of the country, which are not manufactured .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Coal Services (P) Ltd. Vs. State of Orissa and others), the petitioner-company is a dealer in coal. It not only purchases coal from Mahanadi Coal Ltd, but also imports Steam (Non-coke) coal from different sellers under high seas agreements beyond the customs barrier of the country. Thus, it is submitted that the major quantity of Steam (Non-coke) coal is received by the petitioner at Paradip Port in the State of Orissa in course of import into the country. The petitioner claims that after custom .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

supplying way bills to the petitioner and threatened to take further harassive attitude. The petitioner has to pay a token sum of ₹ 5,000/- on 27.01.2005 so that supply of way bills by the opposite party no.3 would remain unhindered. In the same manner, the petitioner has also paid huge sum amounting to almost ₹ 20,00,000/- towards entry tax. The petitioner claims that it is not liable to pay such entry tax and necessary directions be passed for refunding the tax already collected f .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

entry tax is not leviable on goods imported from outside the country, inasmuch as, it is hit by Article 286 of the Constitution, on behalf of the State Government learned Advocate General submits that the challenge is untenable on the face of the said Article, which contemplates rider tax on sale or purchase of goods which takes place in course of import into the territory of India but, not in respect of taxes on entry of goods into a local area as per Entry 52 of List II of the Seventh Schedule .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

would be out of purview of domain of the State. The learned Advocate General submits that Section 2(j) of the Act, which defines purchase value, does not expressly provide for including the import duty. However, it provides for all other charges incidental to the purchase of such goods. Therefore, it includes import duty. Furthermore, it is contended that purchase value means the value of schedule goods as ascertained from original invoice or bill. In case of imported goods the bill of indent i .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

its own account or on account of its principal or customer or takes delivery or is entitled to take delivery of such goods. No invidious distinction is made between the goods brought from other local areas or outside the State or those brought from outside the country. The State Government further pleads that Entry 52 of List II of Seventh Schedule read with definitions of entry of goods . Section 2(d) and local area Section 2(f) contemplates the taxable event is entry of goods into local area f .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

dustries Limited Vs. State of Orissa, (2008) 16 VST 85 (Ori) has been stayed by the Supreme Court by order dated 30.10.2009 in I.A. No. 327-651 in SLP C No.14454-14778 of 2008. It is further submitted that the decision rendered by the Sales Tax Tribunal in Hindustan Aeronautics Ltd case is under challenge before this Court in STREV Nos.34 and 35 of 2011. Hence, such findings recorded by the Tribunal has not become final and is not applicable to the case. As far as the plant is concerned, learned .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

imported outside the country?, III. Whether the plant, which has been brought into the local area of Balgopalpur in knock down condition is leviable with entry tax or not? and IV. Whether different raw materials, as described earlier in the case of M/s IFGL Refractories vs. State of Orissa and others in W.P.(c) No.7 of 2008 are liable for entry tax as they are not included in the schedule appended to the Act and to what relief the petitioners are entitled to.? 10. The first question relates to .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e takes place- (a) outside the State; or (b) in the course of the import of the goods into, or export of the goods out of, the territory of India. (2) Parliament may by law formulate principles for determining when a sale or purchase of goods takes place in any of the ways mentioned in clause (1). (3) Any law of a State shall, in so far as it imposes, or authorizes the imposition of,- (a) a tax on the sale or purchase of goods declared by Parliament by law to be of special importance in inter-St .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

which is derived from Entry 54 of List II of the Seventh Schedule of the Constitution. However, power to legislate and levy on entry tax is derived from Entry 52 of the said List. The two fields of legislation are distinct and separate. So, the restrictions contained in Article 286 of the Constitution cannot be applied to the legislative field contained in Entry 54 of List II of the Seventh Schedule of the Constitution. This aspect arose before the Kerala High Court in Fr. William Fernandez Vs. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

mounted and as such the Act is applicable to the appellants, who had imported vehicles from abroad. These submissions seem to us to be untenable. We do not agree that there are any limitations upon the State s power to legislate, which is covered by item 52 of List II of the Seventh Schedule of the Constitution as has been correctly held. Tax is due upon entry of goods into the local areas. …..xxx 11. So far as the scope of imposition of entry tax on goods imported from outside the countr .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

or export out of the territory of India. The restriction, imposed on the State, is, thus, in respect of levy of tax on the sale or purchase of goods, which takes place in the course of import into, or export out of, the territory of India. The power to levy sales tax is derived from entry 54 of List II of the Seventh Schedule to the Constitution of India; whereas the power to levy entry tax is derived by entry 52 of the List II of the Seventh Schedule to the Constitution. Under entry 54, the poi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

different. The restriction, imposed by article 286 (1)(b) of the Constitution, is in respect of the levy of tax on sale or purchase of goods and not as regards entry of the goods into a local area for consumption, use or sale therein and, hence, the contention of the petitioners that levy of entry tax on goods imported from outside the State is hit by article 286 (1) (b) of the Constitution of India has no force and is misconceived. xxx 12. In course of hearing, the petitioners have submitted th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

th Schedule reads as follows:- 83. Duties of customs including export duties. However, Entry 52 of List II of VII Schedule of the Constitution reads as follows:- 52. Taxes on the entry of goods into a local area for consumption, use or sale therein . Taking recourse to Article 246 of the Constitution, it is urged on behalf of the petitioners that the State legislature cannot infringe the legislative power of the Parliament and levy of entry tax imposed on imported goods is directly in conflict w .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ny State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the State List ). 13. The legislative power of the Union and the State cover altogether different fields of legislation and the incidence of both taxes are distinct and separate. The Parliament has enacted Customs Act, 1962 in super-session of the Sea Customs Act, 1878. Section 12 of the Customs Act, 196 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tion precedent for importation of goods to the country, i.e., before its clearance and before the goods are allowed to cross the custom barriers. On the other hand, the levy of entry tax, as per Section 3 of the Act, is that entry of goods into a local area for the purpose of consumption, use or sale therein. In Kiran Spinning Mills Vs. Collector of Customs, 1999 (113) ELT 753 (SC), the Hon ble Supreme Court has examined this aspect at Paragraph-6 and held as follows:- 6. Attractive, as the argu .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the rate of duty which will be payable would be on the day when the goods are removed from the bonded warehouse. That apart, this Court has held in Sea Customs Act-1964 (3) SCR 787 at page 803 that in the case of duty of customs the taxable event is the import of goods within the customs barriers. In other words, the taxable event occurs when the customs barriers is crossed. In the case of goods which are in the warehouse the customs barriers would be crossed when they are sought to be taken ou .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

re means to bring into the territory of India goods from abroad. The words course means progress from point to point . The course of import, therefore, starts from one point and ends at another. It starts when the goods cross the customs barrier in a foreign country and ends when they cross the customs barrier in the importing Country. Having taken note of the ruling of the Supreme Court in the aforesaid two cases, this Court comes to the conclusion that when the goods imported out of the countr .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

of Uttar Pradesh, (2005) 139 STC 537 (SC). The ratio decided in the above case is distinguishable and is not applicable to the present cases and the same is demonstrated as follows:- In Godfrey Phillips India Ltd.(Supra) the assesses were either manufacturer or dealer of tobacco products. They assailed the levy of luxury tax on tobacco and its products under Uttar Pradesh Tax on Luxuries Act, 1995; the Andhra Pradesh Tax on Luxuries Act, 1987; and the West Bengal Tax on Luxuries Act, 1994. Whil .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

osed in lieu of sales tax by different States. Further, levy on sale of tobacco in the name of luxury tax is not permissible although an attempt was made to show storage. Tax on the goods under the Luxury Act was held to be impermissible under Entry 62 of List II. The Hon ble Apex Court after holding that tobacco as a good, further, held that it cannot be taxed as luxury by interpreting Entry 62, List II. In paragraph-99 of the Judgment the Supreme Court, further, held that the scope of Entry 62 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

in the aforesaid case, it cannot be held that entry tax cannot be levied under the Act pursuant to Entry 52 of List II since the custom duty is levied on the imported goods under Entry 83 of List I. Entry 62 of List II of the Seventh Schedule reads as follows:- 62. Taxes on luxuries, including taxes on entertainments, amusements, betting and gambling. The taxable event of the Act is entry of goods into local area whereas custom duty on import of goods into territory of India. When the former is .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

n respect of the levies, viz., custom duty and entry tax are different and distinct and there is no overlapping. Thus, there is no conflict between legislative power under Entry 83 of List I and Entry 52 of List II. The ratio decided in Godfrey Phillips India Ltd. (supra) does not render any aid to the petitioners contention. Therefore, it is held that entry tax can be imposed on the goods, which are imported from outside the territory of India. The ratio decided in the aforesaid case is not app .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

local area is essentially a tax on import of goods which is authorized only under Entry 83 of List I of the Seventh Schedule to the Constitution. The ratio decided in the aforesaid can be distinguished and is not applicable to the present case. In that case, the Hon ble Supreme Court was dealing with levy of terminal tax at the point of exit from a local area. There the question was whether goods passing through Wardha Municipality by road dispatched from Yeotmal to their destination at Nagpur w .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

hus, the said case cannot be applied to the present fact situation to accord with the contentions raised by the petitioners. As has been noted in Kiran Spinning Mills & J. V. Gokal & Co. Pvt. Ltd (Supra) the import ends the moment goods brought from outside the country crosses the custom barrier. Therefore, the levy of entry tax on imported goods is permissible. 17. Furthermore, the provisions of Orissa Entry Tax Act does not reflect that the legislature has no intention of imposing tax .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ther angle. The Act is a tax in lieu of octroi incident of which are similar to that of entry tax. When the levy of octroi on imported goods was upheld by different courts, there is no reason why entry tax on the imported goods cannot be upheld. Now, it is seen that prior to introduction of the Act, the levy of octroi was invoked by virtue of powers conferred on the municipality and other local bodies under Section 131 (1) (kk) of the Odisha Municipal Act, 1950. However, on passing of the Act, t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

of the OET Rules and procedure prescribes the method of distribution of entry tax collected to each local authority every year. The entry tax is, thus, in essence a tax in lieu of octroi duty. Therefore, the decisions rendered in the context of levy of octroi are applicable to this case. 19. Thus, on the basis of the aforesaid discussion, this Court comes to the conclusion that the contention of the petitioners that levy of a tax on import of goods is within the exclusive legislative domain of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

pretation of provision of the Orissa Entry Tax Act itself shows that entry tax is not leviable on the goods imported from outside the country. For this aspect of the case, it is appropriate to take note of Section-3, which provides for levy of tax. It reads as follows:- 3. Levy of Tax.- (1) There shall be levied and collected a tax on entry of the scheduled goods into a local area for consumption, use or sale therein at such rate not exceeding twelve percentum of the purchase value of such goods .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

(2) The tax leviable under this Act shall be paid by every dealer in scheduled goods or any other person who bring or causes to be brought into a local area such scheduled goods whether on his own account or on account of his principal or customer or takes delivery or is entitled to take delivery of such goods on such entry: Provided that no tax shall be levied under this Act on the entry of scheduled goods into a local area if it is proved to the satisfaction of the assessing authority that suc .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

in sub-sections (1) and (2), but subject to the provisions of this Act, there shall be levied and collected a tax on the entry of any motor vehicle into any local area for use or sale therein which is liable for registration in the State of Orissa under the Motor Vehicles Act, 1988 (59 of 1988), and rate of tax shall be at such rate or rates as may be specified by the State Government by notification on the purchase value of such motor vehicles. Explanation.- For the removal of doubts, it is he .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

out from the charging Section. The entry tax is leviable on scheduled goods brought into a local area for consumption, use and sale therein. 22. In Polestar Electronics (Pvt) Ltd. Vs. Additional Commissioner of Sales Tax, (1978) 41 STC 409 (SC), it is held that: xxx it is only from the language of the Statute that the intention of the legislature must be gathered, for the legislature means no more and no less than what it say. It is not permissible to the Court to speculate as to what the Legis .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Thus, it is clear from the aforesaid cases that the plain language of the charging provision has to be taken into consideration. In the schedule of goods also there is no exclusion from levy of tax on imported goods. Section 6 of the Act has provided the State Government to notify to exempt any scheduled goods either in part or full in public interest from levy of entry tax or to exempt any class or classes of persons engaged in charity or social services from such levy. The State Government has .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nd Saran Ganga Saran Vs. Commissioner of Sales Tax, (1985) 60 STC 1 (SC) has laid down that the levy of tax to be operative four elements are to be provided. (i) Character of imposition known by its nature, which prescribes the taxable event attracting levy, (ii) Clear indication of the person on whom levy is imposed and who is obliged to pay the tax, (iii) The rate of tax at which the tax is imposed, (iv) The measure or value to which the rate will be applied for computing the tax liability. 27 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

has held that it is well settled that the measure of taxation cannot affect the nature of taxation and, therefore, the fact that service tax is levied as a percentage of gross charges for catering cannot alter or affect the legislative competence of Parliament in the matter. 28. Viewed in a slightly different context, it is seen that purchase value has been defined under Section 2(j) of the Act and it reads as follows:- (j) Purchase Value means the value of scheduled goods as ascertain from ori .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ds are acquired or obtained otherwise than by way of purchase, then the purchase value shall be the value or the price at which the scheduled goods of like kind or quality is sold or is capable of being sold in open marked; A plain reading of the above provision reveals that purchase value of the goods has to be derived from invoice of goods and any subsequent levies thereafter to form part of purchase value for the purpose of levy of entry tax. The invoice of the imported goods purports to indi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

of clearance of the goods, prominently indicate in all the documents relating to assessment, sales invoice, and other like documents, the amount of such duty which will form part of the price at which such goods are to be sold. 29. Thus, the customs duty is bound to be indicated in the original invoice or bills. The value of goods is ascertainable from the invoice itself, which is inclusive of the customs duty. The purchase value, which includes other kinds of levy such as insurance, excise dut .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e custom duty shall form part of the value of the goods. In doing so, the Supreme Court has relied upon the reported case of Shroff and Co. Vs. Municipal Corporation of Greater Bombay, (1989) Supp. 1 SCC 347. In that case, the Supreme Court has held that octroi duty is leviable on imported goods and the countervailing duty will form part of value for purpose of levy. Thus, the argument of the petitioners that since customs duty is not specifically mentioned in the definition of purchase value in .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

agraphs, without adding anything, outside the State means any place outside the State and includes all places outside the State as well as outside the country. Had the legislature intended to exclude imported goods from the net of taxation, the words except goods brought from outside the country would have been mentioned in the above definition. The two phrases any place outside that local area and any place outside the State were used to signify that entry tax will be levied on (a) when goods m .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ding or subtracting anything from the statute. There is also no equity about a tax and there is no presumption as to tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used. In this connection, the reported cases of Commissioner of Income Tax vs. Ajax Products Ltd., AIR 1965 SC 1358; Commissioner of Income Tax vs. Kharwar, AIR 1969 SC 812; Calcutta Jute Manufacturing Co. Vs. Commercial Tax Officer, (1997) 106 STC 433 (SC) are relied upon. 34. In Com .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

in Federation of Hotels and Restaurants Association Vs. Union of India, (1989) 74 STC 102(SC) has applied the principle of pith and substance to interpretation of the statute and laid down that the true nature and character of the legislation must be determined with respect to the question of power of legislature. The consequence and effect of the legislation are not same thing as the legislative subject matter. The true nature and character of the legislation but not the ultimate result that m .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e writ petition filed by M/s Emami Paper Mills Vs. State of Orissa (W.P.(c) No.13978 of 2008). The learned counsel for the petitioner, in this case, has submitted that since the aforesaid plant and machinery were brought in knock down condition, as it was impossible to move the plant to USA to the site on which the plant is to be established, the said plant and machinery brought in knock down condition were transported in parts. As such it is contended that since the plant is not a scheduled ite .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

r production of papers, are liable to entry tax or not. As Plant has not been defined separately in the Act, we have to go by the grammatical definition of Plant . Plant , as per the Concise Oxford Dictionary, means a place where an industrial manufacturing process takes place and machinery used in an industrial or manufacturing process . So, plant is a combination of various machinery, which are used in a manufacturing of product. As has been mentioned earlier, in a taxable statute, nothing has .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

other States out of the country by M/s IFGL Refractories (W.P.(c) No.7 of 2008). Having carefully examined the items described in the 3rd sub- paragraph of paragraph 6, we come to the conclusion that the items like Ladle Shrouds, Sub entry Nozzels, Monoblock Stopper, Tundish Nozzle, Slide Gate Plates and raw materials like Fused Silica, Lime stabilize Fused Zirconia, Fused Magnesia, Sintered Magnesia, Silicon Metal, Natural PVC, Refractory Glaze, Furfular Alchohal and Micro Silica, etc are not .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

what is new what is new
  ↓     bird's eye view     ↓  


|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version