TMI Blog2009 (4) TMI 840X X X X Extracts X X X X X X X X Extracts X X X X ..... For the Petitioner : Mr. V. Ramachandran Senior Counsel for M/s. Anita Sumanth For the Respondent : Mr. Haja Naziruddin, Spl. G. P. (Taxes) ORDER (Order of the Court was delivered by K. Raviraja Pandian,J.) Not satisfied with the common order of the Sales Tax Appellate Tribunal (Main Bench), Chennai dated 29.8.2002 made in S.T.A.Nos.759 of 2000, 534 of 2000, 1027 of 1999, 1011 of 1999, 757 of 2000, 1010 of 1999, 1243 of 1999, 1012 of 1999 and 1083 of 2000 relating to the assessment years 1993-94, 1994-95, 1991-92, 1989-90, 1995-96, 1988-89, 1996-97, 1990-91 and 1996-97 respectively bringing the so called demurrage charges or cylinder holding charges for taxation under Section 3-A of the Tamil Nadu General Sales Tax Act (hereina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as brought to tax. On appeal, the first appellate authority modified the turnover relating to demurrage charges among other turnovers. The assessee carried the matter on further appeal to the Sales Tax Appellate Tribunal and contended that the Orissa High Court in its sister concern's case i.e., Asiatic Gases Limited Vs. State of Orissa and another reported in 121 STC 405 considered an identical issue with reference to the identical terms of the agreement and held that "possession and custody of the cylinders by the customers for 14 days was permissible but beyond 14 days was without authority for which the assessee was charging certain amount. In other words, after 14 days, there was no permission for keeping in possession and custody of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alty levied for illegal retention beyond the agreed period. Such amount could not be held to be taxable. But the subsequent development is that the said decision in 121 STC 405 was carried on appeal to the Apex Court by the State of Orissa in the case of STATE OF ORISSA AND ANOTHER VS. ASIATIC GASES LTD., (2007) 7 VST 531, wherein the Apex Court had upset the decision of the High Court by holding that "the medical-oxygen/industrial gases could not be sold without the containers. The property in goods (oxygen/gas) could not be passed to the customers without such containers. Therefore, containers constituted an integral part of the medial oxygen and industrial gases. Section 2(g)(iv) of the Orissa Sales Tax Act provided that the sale shall m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edical oxygen/industrial gas were loaned to the customers. The loan was free from payment of charges for 14 days. The over-retention charges were levied after 14 days. In the circumstances the levy was on the transfer of the right to use the goods for consideration." 8. For the foregoing reasons and in the light of the law enunciated by the Supreme Court in the above said judgment, which has also taken into consideration the other judgment of the Supreme Court in the case of AGGARWAL BROTHERS VS. STATE OF HARYANA (1999) 113 STC 317, the issue has to be decided that the so called cylinder holding charges collected by the assessee are exigible to tax under Section 3-A of the TNGST Act, which is a charging provision for levy of tax for the t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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