TMI Blog1997 (4) TMI 466X X X X Extracts X X X X X X X X Extracts X X X X ..... s? (2) Whether, in the facts and circumstances of the case, the Tribunal was justified in confirming the penalty imposed under section 17(3) of the Act? (3) Whether, in the facts and circumstances of the case, the Tribunal was right in holding that cylinders are taxable at the rate of 10 per cent and not at the rate of 5 per cent as packing material? 2.. The applicant-assessee deals in the manufacture, purchase and sale of different types of gases. Before the assessing officer, the applicant-assessee claimed that old cylinders sold by him were taxable at the rate of 5 per cent as packing materials. The assessing officer disagreed with him on the ground that cylinders are not included in the list of packing materials specified in entry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee had purchased building materials to be used for repair, renewal and maintenance which was not in the course of his business. The business of the assessee was manufacture of gases and the building material was purchased by him for repair and construction of the building. Therefore, it cannot be said that this material was necessary and required in the course of his business. 4.. The business of the assessee is manufacture of gases and, therefore, we have to look into the basic aspect whether this building material which had been purchased by the assessee for purposes of maintenance of building, becomes a necessary material in the course of his business. In our opinion, it is not so. A similar view has been taken by this Court in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) or revised return under sub-section (2) for any period in the manner and by the date prescribed thereunder or while furnishing the return fails to furnish along with the return, the proof of payment as required by sub-section (1-A); or (c) a registered dealer fails to furnish return, the Commissioner may after giving such dealer a reasonable opportunity of being heard, direct him to pay, by way of penalty,- (i) in the case referred to in clause (a), in addition to any tax payable by him a sum not exceeding fifty rupees for each occasion of the default, subject to a maximum of five hundred rupees in each case; (ii) in the case referred to in clause (b), in addition to the amount of tax, if any, payable by him a sum equal to one per c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to sub-rule (2) of rule 27 of the Rules prescribes that every dealer who is ordinarily liable to pay tax under the Act at the rate of rupees six thousand per quarter or rupees twenty-four thousand per annum, or above, and who is required to furnish quarterly returns shall pay before the 10th of the second and third month respectively of every quarter an amount equal to the actual amount of tax payable by him for the first and second month of that quarter, or 1/3rd of the tax deposited in respect of the corresponding quarter of the preceding year. The balance of the amount of tax due from him for a quarter, according to the return, shall be paid on or before the date prescribed for furnishing of such return. Shri Shrivastava, learned coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the assessee has laid much stress on the decision given by the Indore Bench in the case of Sanghi Brothers (Indore) Ltd. v. Commissioner of Sales Tax, M.P. [1997] 107 STC 72 supra ; [1996] 29 VKN 369. With great respect, their Lordships had no occasion to independently decide the issue and they have only quoted Full Bench decision of the Tribunal and proceeded to decide the matter. We have examined the matter independently and also the view of the Full Bench of the Tribunal. The view taken by the Tribunal does not appear to lay down correct law. The Tribunal has observed that section 17(3) of the Act does not incorporate that non-payment of monthly tax or late payment of tax shall be visited with penalty. That is not the correct view. As ..... X X X X Extracts X X X X X X X X Extracts X X X X
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