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TMI Blog2013 (5) TMI 317X X X X Extracts X X X X X X X X Extracts X X X X ..... metal crusher unit and a registered dealer on the rolls of the second respondent, was mulcted with penalty of Rs. 9,87,682/- in respect of the assessment year 2007 - '08. Placing reliance on the penalty imposed, the assessment was sought to be completed fixing huge liability upon the petitioner; which was subsequently set aside by the appellate authority, simultaneously intercepting the penalty order as well and directing the original authority to pass fresh orders as specified. In the meanwhile, the petitioner filed an application to permit the petitioner for remitting the tax at the compounded rate under Section 8 (b) of the Act. The application preferred by the petitioner was however rejected without giving any opportunity of hearing, which made the petitioner to approach this Court by filing W.P.(C) No. 20811 of 2011. This Court set aside the impugned order and directed the second respondent to consider the matter complying with the statutory requirement under Section 8 of the Act and Rule 11 (2) (ii) of the Rules, as per Ext. P8 judgment. Pursuant to the above verdict, notice was issued to the petitioner by the second respondent again, proposing to reject the option for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. 5. Heard the learned counsel for the petitioner as well as the learned Government Pleader at length. 6. For the purpose better appreciation of the statutory prescription, it is worthwhile to extract the provisions, particularly Section 8 (b) and 8 (f). Section 8(b) Any dealer producing granite metals with the aid of mechanized crushing machine may, at his option, instead of paying tax in accordance with the provisions of the said sections, pay tax at the following rates, namely :- (i) for each crushing machine of size not exceeding 30.48 cm x 22.86 cm = Rs. 40,000 per annum (ii) for the each crushing machine of size exceeding 30.48 cm x 22.86 cm but not exceeding 40.64 cm and 25.40 cm = Rs. 1,40,000 per annum (iii) for the each crushing machine of size exceeding 40.64 cm x 25.40 cm = Rs. 2,80,000/- per annum (iv) for each cone crusher Rs. 15,00,000/ per annum. Provided that in the case of dealers, who opted to pay compounded tax under this clause, no separate assessment shall be made in respect of M-sand produced by them. Provided further that notwithstanding anything contained in this clause, dealers with a single crushing machine of size no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Explanation 4: Where a dealer has not opted to pay compounded tax with respect to a new branch opened in 2008-09, the compounded tax payable for such branch for the year 2008 - 09 shall be notionally fixed as the average of the compounded tax paid for the principal place and branches in that year and if the new branch opened is the first branch, the compounded tax payable for it shall be the same as that payable for the principal place of business. Explanation 5: Where a dealer opens a new branch in the current year, the additional compounded tax payable under this clause in respect of such branch shall be the average of the tax payable by him in respect of his principal place of business and all branches. Explanation 6: Where a dealer has opted for payment of tax under this clause for the fist time in 2010 - 11 and has commenced business only in 2009 - 10 and the tax payable as per return or account during 2009 -10 is less than the output tax payable, then the tax payable for 2009 - 10 shall be notionally re-determined on the basis of output tax for determining the tax liability for 2010 - 11 Explanation 7: Tax payable as conceded in the accounts includes the tax payable on sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... approval' of the District Deputy Commissioner. As per Section 8 (f) (iii), it is stipulated that appeal is maintainable before the Appellate Tribunal against the orders passed under sub clause (ii). No other provision is there, specifically dealing with appellate remedy and Section 8 as such is in respect of the dealers who opt for compounding as discernible therefrom. This being the position, the case of the petitioner is that, there is absolutely no rhyme of reason for having rejected Ext. P12 appeal by the first respondent Tribunal. 7. Now coming to the crucial question as to whether clauses (ii) and (iii) of Section 8(f), exclusively deal with dealers in gold, silver, platinum ... etc., the specific case of the respondents is that these circumstances are with specific reference to the option proposed to be given and those decided to be given to the dealers of gold, silver and platinum ornaments and such other persons who are specifically dealt with under Section 8 (f). The learned Government Pleader appears to be justified in referring to the budget speech, particularly paragraphs 165 to 167, so as to highlight the said proposition. It is in respect of such gold/silver/p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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