TMI Blog2002 (2) TMI 1296X X X X Extracts X X X X X X X X Extracts X X X X ..... ustry and deals in the vegetables and oils. It seems that the assessing authority during the assessment specifically considered the question of the said vegetable oil and found that the assessee had effected the sales and had paid the tax only at 4 per cent for the relevant assessment year of 1987-88. He then proceeded to hold that the seized oil consisted of vegetable oil, chemicals and other visible and invisible foreign material. This oil could not be classified as vegetable oil or inferior grade vegetable oil and therefore he held that the sales turnover of the oil was liable for tax at 5 percent multi point as provided under section 3(1) of the Act. The observations seem to have been based on a stray reference in the order that the oil is called soap stock or acid oil or waste oil in the market. He accordingly taxed the turnover at 5 per cent. The assessee had also claimed that he was not liable to be taxed on account of the purchase of the tins and tin tops. However, it is found against him that he was liable to be so taxed and a further penalty amounting to Rs. 1,01,661 was inflicted. 5.. In an appeal, however the first appellate authority came to the conclusion that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the argument is that firstly, the issue as to whether the acid oil or inferior oil was a vegetable oil or not was not before the court and secondly, in the relevant year, which was in consideration before this High Court, there was an entry 138 on the statute book, which entry was not available in the present case since that entry was deleted later on by an amendment. It was therefore pointed out by the learned counsel that the only issue, which was pending before the court was, whether the acid oil was covered under the entry 138 which was "Dyes and chemicals other than those specifically mentioned in this Schedule". The learned counsel further points out that since this entry is deleted totally, the assessee was entitled to claim that the acid oil would be covered in the entry of vegetable oil, which is entry No. 170. The learned counsel secondly points out that this question was directly considered by the apex Court in the decision of Commissioner of Sales Tax, U.P. v. Prag Ice and Oil Mills reported in [1991] 80 STC 403. Lastly, the learned counsel pointed out that the penalty which was inflicted upon the petitioner on account of the purchase under section 7-A should not have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we are called upon to decide as to whether the "acid oil" or the "inferior quality oil" amounts to a "vegetable oil" and can be covered under the entry "vegetable oil", that too, in the absence of entry 138. In our opinion therefore the said judgment of this Court was not apposite to the controversy before the Tribunal. When we see the order of the Tribunal, we find that the Tribunal has not even referred to the facts involved in the aforementioned case. It has dealt with the whole controversy in one paragraph merely after quoting the judgment. The only reason why they have followed this judgment is that the Tribunal had held in the assessment year 1980-81 in T.C. (R). Nos. 619 to 624 of 1997 that the acid oil was not a vegetable oil. Now, again it was liable to be seen and realised that even in the year 1980-81, the said entry 138 was very much on the statute book. The deletion of that entry 138 was completely missed by the learned members of the Special Tribunal. The High Court's judgment, which has been quoted by the learned Tribunal would and could have been available to the learned Tribunal for the assessment year 1980-81, but not after the entry was deleted, particularly, whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ...". 12.. Here also, the position is not different on facts. There can be no dispute that the impure oil or the acid oil is nothing but a residue of the available oil, which the petitioner manufactures or purifies as the case may be. Even this oil which the petitioner has sold and in respect of which the controversy has arisen is sold to the soap manufacturers as in the Supreme Court case. We therefore find ourselves bound by the apex Court judgment and would respectfully abide by the same. The revision would have to be allowed in so far as the question of the taxability at 5 per cent in contra distinction with 4 per cent as was ordered by the first appellate and second Appellate authorities and their orders would have to be restored setting aside the order of the Special Tribunal in this behalf. 13.. That leaves us with the question of penalty, which was ordered by the Special Tribunal on account of the sale under section 7-A. The contention of the learned counsel is that the penalty, though minimum would be unjustified and the petitioner should be given the advantage of the uncertainty of the law as was prevailing at the relevant time. The learned counsel points out that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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