TMI Blog2008 (9) TMI 876X X X X Extracts X X X X X X X X Extracts X X X X ..... lves under their trade name has been established by materials. In such circumstances, no irregularity in the order of the appellate Tribunal in coming to the conclusion that the sale of rolling shutters by the assessee is taxable as works contract under section 3-B of the Act. Now, coming to the imposition of penalty under section 12(5)(iii) of the Act, which was obtaining during the relevant period, if the assessing authority is satisfied that the return filed by the dealer is incorrect and incomplete, he may impose penalty, which penalty shall not been less than 50% and shall not be more than 150% of the difference in tax payable on the turnover disclosed in the return and determined by the assessing authority. Hence, the imposition o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter taking note of the transaction and the material evidence available in respect of manufacture of rolling shutters again framed an assessment treating the transaction of sale of rolling shutters as one of works contract. On appeal, once again the First Appellate Authority accepted the contention of the assessees that they effected sale of tax suffered goods, such as guide channel, bottom plate, ball bearing, steal tubes, and angles; that the rolling shutters emerged only at the place of customers, and set aside a portion of the assessment order. Aggrieved by that portion of the order, the assessees filed appeals before the Tribunal. The revenue filed enhancement petitions for restoration of taxable turnover deleted by the Appellate Assis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utters in their factory with their trade name. There was no material available on record to prove that the customers have given any specification of the materials to be used in fabrication of the rolling shutters. The contract is one for delivery and affixing of the rolling shutter in the customer's place in a particular size and length prescribed by the customers. Payments were made for the entire work for manufacture of rolling shutters and installation of the same. On the face of the above finding, the contention of the assessee that they have effected sale of tax suffered goods such as guide channel, bottom plate, etc., to the customers and the rolling shutters were manufactured in the place of customers and therefore, the sale of g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3-B for levying tax on works contract in the Tamilnadu General Sales Tax Act. The Constitutional validity of the amended provision was upheld by the Supreme Court, which requires no reproduction. The history of the amendment has been elucidated in the judgment of the Supreme Court in the case of BSNL v. Union of India, (2006) 145 STC 91. 7. From the facts, it is clear that the revision petitioners are dealers in rolling shutters and they have manufactured the rolling shutters in their factory and erected the same in the customer's place. The contention of the assessee is also that they have sold tax suffered goods like guide channel, frame, ball bearing etc., to the customers has also not been established. On the other hand, the manu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent is taxable at 4% as declared goods or 8% and 11% under item No.63-D of the First Schedule. 10. It is the case of the assessee that it manufactured the rolling shutters with the tax paid goods, such as guide channel, bottom plates, ball bearing, steel tubes, angles, etc., which are iron and steel coming under declared goods taxable at the point of First sale at 4%. The Tribunal has rejected the claim by following the Division Bench decision in the case of Apparels and Handloom Exporters Association v. State of Tamilnadu, 129 STC 167, wherein the Court has held that if a person who is engaged in manufacture of rolling shutters, buys iron and steel for the purpose of manufacture, after paying tax on such purchase, he cannot contend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urer of rolling shutters. The shutters are manufactured within the factory premises of the assessee and removed to the customers' place. As per the document relating to the Central Excise, i.e., the gate pass, the assessee had manufactured the rolling shutters and the gate pass under the Central Excise Act also referred to the value of the shutters. The shutters manufactured out of the locally purchased materials are commercially differently identifiable commodity and taxable under section 3-B of the TNGST Act at applicable rate and value. We do not find any ground to interfere with the concurring finding of the authorities under the Act and that of the Tribunal. These revisions in T.C. (Rs) Nos.470 and 472 of 2006 are also dismissed. N ..... X X X X Extracts X X X X X X X X Extracts X X X X
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