TMI Blog2004 (11) TMI 528X X X X Extracts X X X X X X X X Extracts X X X X ..... and they are paying tax at the rate of 8 per cent. The petitioners are crushing the stone boulders into stone grits and gittis and are selling it to dealers and consumers. The Government of Uttaranchal issued notification dated February 16, 2004 (annexure 2 to the writ petition) and the goods notified have been made taxable at the point of sale to the consumers. However a condition has been placed that if the goods are sold by the dealer to the stone crushers, then tax shall be realised at the point of sale by the stone crushers and further that if tax has been paid by the dealer on the purchases made by the stone crushers then amount shall be refunded or adjusted to the dealer in accordance with section 29-A of the Act. 3.. The scheme of taxation under the U.P. Trade Tax Act is a single point taxation scheme, hence only one point of sale has been made taxable and as such the notification dated February 16, 2004 is, in so far as it provides for imposition of tax at the point of sale by the dealer to the consumer, in accordance with the provisions of section 3-A(1)(b) of the Act. However the said section does not authorise the State Government to issue a notification imposing a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 3-A(1)(b) of the Act by providing two different point of sale in respect of same goods, namely, stone boulders which shall include stone gittis, etc. He further urged that section 3-A(1)(b) of the Act does not authorise the State Government to issue notification subject to any conditions or restrictions unlike other provisions of the Act where power has been given to the State Government to issue a notification subject to such condition as may be specified in the notification. The learned Brief Holder on behalf of the State refuted the contentions raised on behalf of the petitioners, while reiterating the propriety of the stand taken in the counter-affidavit. 6.. To appreciate the submissions made on behalf of the parties it is necessary to reproduce the relevant provision of section 3-A(1) of the Act, which provides as under: "(1) Except as provided in section 3-D, the tax payable by a dealer under this Act shall be levied,- (a) On the turnover in respect of 'declared goods', at the point of sale to the consumer at the maximum rate for the time being specified in section 15 of the Central Sales Tax Act, 1956 or where the State Government, by notification, declares any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dapting any goods fall within the meaning of "manufacture". Every type of variation of goods would not amount to manufacture, unless it results in emergence of a new commercial commodity. In the case in hand, no new commercial commodity comes into existence after crushing the stone boulders. The apex Court in the case of Commissioner of Sales Tax, U.P. v. Lal Kunwa Stone Crusher (P.) Ltd. [2000] 118 STC 287; (2000) 3 SCC 525 held that when stone boulders were crushed into stone chips, gittis and stone ballast the process would not amount to "manufacture". Observing that the stone, as such, and gittis and articles of stone are all of similar nature though by size they may be different, the Court also held that the term "stone" is wide enough to include the various forms such as gittis, chips, stone ballast. Hence the State Government in exercise of its delegated power cannot provide different point of sale in respect of the same goods because the State Government has only power to provide different point of sale in respect of different goods and not for the same goods. The impugned condition placed in the notification dated February 16, 2004 however provide two different point of sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , if it does not purchase them for resale in the same form and condition in which he has purchased and for that purpose he furnishes the declaration in form III-A to the assessing authority. Thus section 3-AAA categorically provides that every sale by a dealer to a registered dealer or any other person shall be deemed to be a sale to the consumer. Thus the submission of the State is completely inconsistent to the provisions of section 3-AAA of the Act. 14.. Section 3-A(1)(b) of the Act only empowers the State Government to issue notification in consonance with the provisions of the Act and it does not provide that the State Government may issue notification subject to any condition or restriction. The power to issue notification beyond the scope of the section has not been conferred by the enabling provision in the Act. The provisions of sections 4-AA, 4-AAA, 4-BB, 4-CC and section 5 of the Act specifically provide that the State Government has the power to issue notification subject to any condition and restriction as may be specified in the notification but such power has not been conferred under section 3-A(1) of the Act. 15.. The learned State Counsel has relied upon the de ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
