TMI Blog2005 (12) TMI 539X X X X Extracts X X X X X X X X Extracts X X X X ..... Trust against the order in T.A. No. 479 of 1998 relating to the assessment year 1990-91. In all these cases the main issue arising for consideration is the question posed by us. The Cochin Port Trust is an assessee on the rolls of the Assistant Commissioner (Assessment), Commercial Taxes, Special Circle, Mattancherry. Assessment for the year 1994-95 was completed by the assessing authority vide proceedings dated March 31, 1999 fixing the taxable turnover of Rs. 2,02,58,33,660 as against the conceded taxable turnover of Rs. 1,65,36,244. The port trust challenged that order in appeal before the Deputy Commissioner (Appeals) Ernakulam contending that the port trust is not a dealer within the meaning of the KGST Act in view of the decision of the apex court in State of Tamil Nadu v. Board of Trustees of the Port of Madras [1999] 114 STC 520. A contention was also raised against the addition made to turnover under works contract and hire-charges and forfeiture of excess tax, etc. The appellate authority disposed of the appeal with certain directions to the assessing authority on the levy of tax on works contract and turnover of right to use and also confirming the forfeiture of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I, List II and the Concurrent List in the Seventh Schedule. The entries in the Lists of the Seventh Schedule are designed to define and delimit the respective areas of legislative competence of the Union and the State Legislatures. In the Constitution there is separation of legislative powers between Parliament and the State Legislatures. Entry 54 of List II of the Seventh Schedule enables the State Legislature to enact laws in respect of tax on the sale or purchase of goods other than newspapers, subject to the provisions of entry 92A of List I. Entry 92A of List I confers power on the Union to tax the sale or purchase of goods other than newspapers, where such sale or purchase takes place in the course of inter-State trade or commerce. It is in exercise of powers conferred under entry 54 of List II of the Seventh Schedule that the State of Tamil Nadu has framed the TNGST Act and the State of Kerala has framed the KGST Act. Reference may be made to article 366 of the Constitution of India which is the definition clause. It is settled principle of law that if a term stands defined in the Act, the said term is to be given the same meaning wherever it is used in the Act, unless a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Trust's case [1999] 114 STC 520 was decided by the apex court on March 26, 1999. The TNGST Act was later amended by Act 22 of 2002, which came into force on June 3, 2002. We may extract the relevant portions of the same for easy reference. The Tamil Nadu General Sales Tax (Seventh Amendment) Act, 2002 Act No. 22 of 2002 (Received the assent of the Governor on the 26th May, 2002) An Act further to amend the Tamil Nadu General Sales Tax Act, 1959. Be it enacted by the legislative assembly of the State of Tamil Nadu in the Fifty-third Year of the Republic of India as follows: 1.. Short title and commencement. (1) This Act may be called the Tamil Nadu General Sales Tax (Seventh Amendment) Act, 2002. (2) It shall come into force on such date as the State Government may, by notification, appoint. 2.. Amendment of section 2. In the Tamil Nadu General Sales Tax Act, 1959 (hereinafter referred to as the principal Act), in section 2 (1) in clause (g), after the Explanation (2), the following Explanation shall be added, namely: Explanation (3). Each of the following persons or bodies who dispose of any goods including unclaimed or confiscated or unserviceable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of the State that there is any separate intention on the part of the port trust to carry on business in the unserviceable and unclaimed goods. The apex court finally concluded that the Madras Port Trust does not carry on business and the sale by auction of unclaimed and unserviceable goods, is only an infinitesimal part of the duties of the port trust and therefore the port trust is not a dealer' within the meaning of section 2(g) of the TNGST Act. The TNGST Act was amended by Act 22 of 2002. Explanation (3) was added stating that if the port trust disposes of any goods including unclaimed or confiscated or unserviceable or scrap surplus, old or obsolete goods or discarded material or waste products whether by auction or otherwise directly or through an agent for cash or for deferred payment or for any other valuable consideration, notwithstanding anything contained in the TNGST Act, it shall be deemed to be a dealer for the purpose of the Act. Therefore by Act 22 of 2002, the TNGST Act has specifically brought in Port Trust also within the definition of dealer under section 2(g) of the Act by which the substratum of the judgment in Madras Port Trust's cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requirement of carrying on business by buying, selling, supplying or distributing goods directly or otherwise whether for cash or deferred payment or for commission, remuneration or other valuable consideration was a necessary ingredient of a dealer under the TNGST Act, but clauses like (e), (f) and (g) of section 2(viii) of the KGST Act were absent in the TNGST Act. We have already indicated, in Madras Port Trust's case [1999] 114 STC 520, the Supreme Court was emphasising the expression carrying on business in the context of the TNGST Act, and it is in that context the Supreme Court held in Madras Port Trust's repelled by the Tribunal and the assessing authority was directed to issue necessary orders to adjust the tax collection towards the demand of the tax under CST for the year 1990-91. In S.T.R. No. 321 of 2005, we notice that the appellate authority set aside the addition to turnover, amount of Rs. 50,41,95,859 as turnover under section 5(1)(iii) and levy of tax thereon. The matter was remitted back to the assessing authority for re-examining the assessability of receipt under crainage of Rs. 11,41,238, hire on equipment for container handling of Rs. 5,79,58,320 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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