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TMI Blog1994 (7) TMI 338X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus we proceeded and heard learned counsel for the parties in the absence of the counter-affidavit. 3.. The petitioner seeks quashing of notice dated October 31, 1980, annexure 1 to the petition, letter dated January 2, 1981, annexure 2 to the writ petition, and the letter dated January 29, 1981, annexure 5 to the petition and the consequential recovery proceedings for the amount of Rs. 83,468.65 as tax from the petitioner. 4.. The petitioner-company is a Government of India undertaking and has been carrying on the business of refining and marketing various petroleum products, such as, motor spirit, diesel, kerosene, furnace oil, aviation, turbine fuel and lubricants, etc. The petitioner has got different depots throughout the country, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise at the high altitudes, there is always a shrinkage of the petroleum products in volume whereas the weight remains the same. However the said losses differ from place to place. The petitioner received notice dated October 31, 1980 from the District Excise Officer, Nainital demanding certain amount as tax due under the Act from June 1, 1974 till May 31, 1980 which is annexure 1 to the writ petition. The said notice was on account of audit objection and was also as a consequence of the letter issued by the Excise Commissioner. According to the petitioner neither any assessment order was passed nor any opportunity was given to him. In the said notice it is mentioned that the recovery is being initiated on account of audit objection raised b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on the first sale of motor spirit in the State, a tax at the rate of ten per cent ad valorem, and such tax shall be payable to the State Government in the prescribed manner by the dealer effecting such sale; (b) There shall be levied on the first sale of diesel oil in the State, a tax at the rate of eight per cent and from the date notified by the State Government for the purpose, at the rate of twelve per cent ad valorem and such tax shall be payable to the State Government in the prescribed manner by the dealer effecting such sale. (c) There shall be levied at the point of first purchase of alcohol in the State a 'tax' at the rate of 40 paise per litre for the first million litres and at the rate of 20 paise per litre for the remaind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e tax under the said Act there has to be the sale of diesel oil and motor spirit by the dealer. In the present case the impugned notice which refers the audit objection does not refer to any sale but refers to the loss incurred during the period in question of the said commodities. Accordingly, the attempt was made for the said loss being payable by the respondents. According to the petitioner as stated in the writ petition which remains uncontroverted the sale effected by the petitioner has been shown even in the monthly return and the respondent-authorities have accepted the same. It is significant to note that never in the past the petitioner's account was ever rejected or return has not been accepted. No authority is competent to realis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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