TMI Blog1998 (12) TMI 576X X X X Extracts X X X X X X X X Extracts X X X X ..... nted relief on the disputed turnover representing the tax assessed on the sales of wires. The relief was allowed on the ground that the wire rods from which wire was drawn suffered tax in the State at the point of sale to the appellant and therefore, no further tax need be paid on the resultant wire under entry 2 to the Third Schedule of the APGST Act. This relief was granted on the basis of the decision of the Supreme Court in Telangana Steel Industries v. State of Andhra Pradesh [1994] 93 STC 187 which was decided on March 4, 1994. The Supreme Court took the view that the wire rods and wires were treated by the Central Sales Tax Act and the APGST Act as a single item of declared goods and therefore, if the wire rods purchased by the appellants suffered sales tax, the tax cannot be realised once again on the sale of wires, because it is a single point levy. The Supreme Court reversed the judgment of a Division Bench of this Court which took the view that wires and wire rods are separate taxable commodities and their inclusion in one sub-item does not preclude imposition of sales tax on the sales of both. The Supreme Court allowed the appeals filed by the appellants herein. It ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Supreme Court. 3.. Before proceeding further, it must be made clear that the Commissioner did not revise the order granting refund as a sequel to the appellate authority s order, though such refund was granted without any enquiry into the question whether the assessee passed on the tax to the buyers. Section 33-BB envisages such enquiry to be made. 4. On an anxious consideration of the entire issue and on taking a holistic view of the matter, we have reached the conclusion that the revisional order of the Commissioner as well as the order of the appellate authority are not sustainable in most of the cases whereas in some other cases, the Commissioner s orders should be set aside on the ground of time-bar or upheld for other reasons. 5.. One of the factors which persuaded the Commissioner to revise and reverse the order of the Appellate Deputy Commissioner is that the authority of Telangana Industries case [1994] 93 STC 187 (SC) has been shaken by the later decision in Anwar's case [1998] 108 STC 258 (SC). We cannot endorse this view taken by the Commissioner, which if accepted would deal a fatal blow to the binding effect of the pronouncement of the Supreme Court concerni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not shown to have been charged separately in the sale bills is not a conclusive factor though it may be one of the relevant factors. The impugned order of the Commissioner does not show that the Commissioner called for the accounts or other relevant documents or that he examined the price structure so as to see whether any element of tax is embedded therein. The observation of the Commissioner that tax burden was passed on to the buyers is a mere ipse dixit. No specific reasons were given except brushing aside the sale invoices as not affording reliable basis to give rise to an inference of non-collection of tax. 8.. Thirdly, the Commissioner did not consider and record a specific finding whether the grounds pleaded by the assessee constitute sufficient cause for condonation of delay. 9.. While the above infirmities are writ large on the face of the Commissioner s order, we find a more serious legal flaw in the order of the appellate authority. By setting aside the order of the Commissioner, we cannot at the same time allow an illegal order of the Appellate Deputy Commissioner to remain. The appellate authority entertained the appeals and disposed them of on merits by condo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disposal as per the directions given above. Special Appeal Nos. 34, 42, 43 and 49 of 1998: 10.. These appeals relate to the assessment years 1983-84 and 1984-85. The condonation of delay in regard to the appeals filed for these years is, in our view, wholly unwarranted and amounts to abuse of the discretionary power vested in the appellate authority, and these need not be remanded. The special appeals deserve to be dismissed straight away. 11.. For the said years, assessments were made and appeals were filed after the decision of the High Court to which the appellant was a party and during the pendency of the appeals filed by the appellants and others in the Supreme Court, no petition for condonation of delay was filed nor any reasons set out for the belated filing of the appeals. The condone delay petitions supported by affidavits were filed only after the decision of the Supreme Court in Telangana Industries case [1994] 93 STC 187. It is surprising how the unnumbered appeals were kept pending for so long a time even without a petition for condonation of delay that had occurred by the date of filing of the appeal. Even in the affidavit filed, no explanation was attempted to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceeding is prejudicial to the interests of the revenue. The Commissioner may make such enquiry or cause such enquiry to be made and subject to the provisions of the Act, may initiate proceedings to revise, modify or set aside such order or proceeding and may pass such order in reference thereto as it thinks fit . Sub-section (3) enjoins that in relation to an order of assessment, the power under sub-section (1) shall be exercisable only within such period not exceeding four years from the date on which the order was served on the dealer. The Commissioner passed the order of revision on July 31, 1998 which admittedly goes beyond the period of four years from the date of service of the appellate order. To get over this difficulty, the learned Government Pleader endeavoured to argue that the period of four years is the outer-limit prescribed to initiate the revision proceedings and it is not necessary that the final order of revision shall be passed before the expiry of four years from the date of service of the order or proceeding to be revised. The very same contention advanced on behalf of the State was negatived by a Division Bench of this Court in State of Andhra Pradesh v. To ..... X X X X Extracts X X X X X X X X Extracts X X X X
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