TMI Blog2002 (2) TMI 1310X X X X Extracts X X X X X X X X Extracts X X X X ..... straw board was rejected and for the year 1989-90, the dispute of tax was taxability on molasses, burnt molasses, iron and steel scrap, and taxing the straw board not as paper. The first appellate authority, i.e., Deputy Commissioner (Appeals), Moradabad, on appeal under section 9 of the Act had remanded the assessment order for the year 1988-89 and confirmed the assessment order for the year 1989-90. Thereafter, the revisionist had filed second appeal under section 10 of the Act before the Trade Tax Tribunal registered as Appeal No. 12 of 1996 (1988-89) U.P., and 15 of 1997 (1989-90) U.P., before the Trade Tax Tribunal, Bench II, Moradabad. 3.. The division Bench of the Trade Tax Tribunal, Moradabad, had allowed both appeals of the revisionist by a common order dated October 28, 1998. 4.. The Commissioner of Trade Tax, Uttar Pradesh, had filed application under section 22 before the Trade Tax Tribunal, Bench II, Moradabad. These applications were registered as Appeals Nos. 2 of 1999 (1988-89) and 3 of 1999 (1989-90) with the said Tribunal for rectifying the decision of taxability of molasses, straw board and refund for molasses granted by not applying section 29-A of Act. Thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1988-89) and 3 of 1999 (1989-90) of the Commissioner of Trade Tax, U.P. is wholly erroneous. Appeal No. 3 of 1999 (1989-90) should have been allowed partly to the extent of tax of Rs. 2,110 imposed on burnt molasses and Appeal No. 2 of 1999 (1988-89) should have been dismissed in terms of order dated October 23, 1999 of the Tribunal for Appeal No. 12 of 1996 (1988-89) was allowed. This order dated October 23, 1999 passed second time under section 22 is under challenge. 8.. The relevant position of law can be examined with reference to the provisions of section 22 of the Act which is quoted as under: "22. Rectification of mistakes.-(1) Any officer or authority, or the Tribunal or the High Court may, on its own motion or on the application of the dealer or any other interested person rectify any mistake in any order passed by him or it under this Act apparent on the record within three years from the date of the order sought to be rectified: Provided that where an application under this sub-section has been made within such period of three years, it may be disposed of even beyond such period: Provided further that no such rectification as has the effect of enhancing the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the burnt molasses, can only be taxed as sugarcane. 12.. For sugarcane there is a separate Act enacted by the State of Uttar Pradesh being the U.P. Sugarcane (Purchase Tax) Act, 1961. Section 13 of the U.P. Sugarcane (Purchase Tax) Act, 1961, reads as follows: "13. No sale or purchase tax under any other Uttar Pradesh Act shall be payable in respect of any transaction of sale or purchase of sugarcane in respect of which a tax is payable under this Act, anything contained in the U.P. Sales Tax Act, 1948 to the contrary notwithstanding." 13.. It is an admitted fact that the purchase tax is paid on sugarcane and in that event the U.P. Sales Tax Act, 1948 (now U.P. Trade Tax Act) cannot be made applicable for taxing the molasses or burnt molasses on the force of section 13 of the U.P. Sugarcane (Purchase Tax) Act, 1961. 14.. The learned Senior Advocate for the revisionist has submitted alternative argument for the taxability on molasses under the U.P. Trade Tax Act, 1948. He has submitted that the U.P. Sheera Niyantran Adhiniyam, 1964, which is a special Act for molasses, will prevail over the general Act, namely, the U.P. Trade Tax Act, 1948, which is applicable for all the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In such an event, administrative charges would be covered under section 4(4)(d)(ii) as 'other taxes' because it is a compulsory exaction made under an enactment and, therefore, a duty or impost and such impost must be held to be in the nature of a 'tax' covered by the aforesaid provisions." 19.. In the matter of D.G. Gouse and Co. (Agents) Pvt. Ltd. v. State of Kerala (1980) 2 SCC 410, decided by a five-Judge Bench in paragraph 5, the same is quoted as under: "5. The word 'tax' in its widest sense includes all money raised by taxation. It, therefore, includes taxes levied by the Central and the State Legislatures, and also those known as 'rates', or other charges, levied by local authorities under statutory powers. 'Taxation' has therefore been defined in clause (28) of article 366 of the Constitution to include 'the imposition of any tax or impost, whether general or local or special', and it has been directed that 'tax' shall be construed accordingly." 20.. The learned Senior Advocate for the revisionist also referred to entry No. 54 of List II of the Seventh Schedule to the Constitution in support of his contention. Entry 54 of List II and entry 92-A of List I of the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he apex Court has held that the taxing power of the State may manifest itself in three different forms known respectively as special assessments, fees and taxes. 26.. In the case of District Council of the Jowai Autonomous Distt. v Dwet Singh Rymbai AIR 1986 SC 1930, the apex Court has held as under: "...........a compulsory exaction of money by a public authority for public purposes enforceable by law, which is not a payment for services rendered is tax." 27.. In view of the decision of the apex Court in the case of District Council of the Jowai Autonomous Distt. AIR 1986 SC 1930 and considering the definition of "tax" given in clause (28) of article 366 of the Constitution, the administrative charges which have not been imposed in view of the services rendered, are in fact tax and hence, in view of section 13 of the U.P. Sugarcane (Purchase Tax) Act, 1961, and sub-section (4) of section 8 of the U.P. Sheera Niyantran Adhiniyam, 1964, the provisions of the U.P. Trade Tax Act, 1948 are not applicable in the matter in question. 28.. Hence, the Trade Tax Tribunal had rightly held in its order dated October 28, 1998 that molasses are not taxable under the U.P. Trade Tax Act, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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