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TMI Blog2005 (1) TMI 665X X X X Extracts X X X X X X X X Extracts X X X X ..... orders under rule 41(7) and levied the tax on the turnover of the aforesaid goods at 2.2 per cent treating them as "metal". Assessment orders for the assessment year 1987-88 was passed on August 29, 1991, assessment order for the assessment year 198889 on February 24, 1992, and for the assessment year 1989-90 on May 23, 1992. Assessing authority initiated the proceedings under section 22 of the Act on the ground that during these assessment years, dealer had sold imported copper wire rod and nickel strips, which were wrongly taxed at 2.2 per cent while in accordance to the decision of the apex court in the case of Hindustan Aluminium Corporation Ltd. v. State of Uttar Pradesh reported in [1981] 48 STC 411; [1981] UPTC 1249 and in view of the decision of this court in the case of Commissioner of Sales Tax v. Gulati and Co. reported in [1982] 4 STL All 16 non-ferrous metal, means metal in primary form. It is further observed that in the case of Hindustan Aluminium Corporation Ltd. v. State of Uttar Pradesh reported in [1981] 48 STC 411 (SC); [1981] UPTC 1249 (SC) aluminium rod has not been treated as aluminium metal in primary form. Dealer filed reply. In reply, it was sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a corporation of the Government of India and engaged in the business of importing and selling metal in primary form. He submitted that assessing authority on consideration of the nature of the goods in the original assessment levied the tax at 2.2 per cent treating them as metal. He submitted that the orders have been passed in the year 1991 when the Division Bench decision in the case of Hindustan Aluminium Corporation Ltd. v. State of Uttar Pradesh reported in [1978] 41 STC 147 (All); [1977] UPTC 81 and the decision of the apex court in the case of Hindustan Aluminium Corporation Ltd. v. State of Uttar Pradesh reported in [1981] 48 STC 411; [1981] UPTC 1249 were available and, therefore, it cannot be said that while passing the original assessment orders aforesaid two decisions were not in the knowledge of the assessing authority. He submitted that the decision in the case of Commissioner of Sales Tax v. Gulati and Co [1982] 4 STL All 16 is not relevant to the issue. In that case dispute was relating to rate of tax on ice-cream cone and decision of the apex court in Hindustan Aluminium Corporation Ltd. [1981] 48 STC 411; [1981] UPTC 1249 has been referred in different context. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd of the Tribunal and the assessment records. In the assessment record, there is list of the purchases of the various items. List shows that at some places nickel bars nickel strips and rods are mentioned and the copper wire rods are also mentioned. In the assessment record, sale invoices are also available, in which items sold are described as nickel strips as well as square bars. Annexure 6 of the revision is a purchase invoice issued in favour of the dealer, which describes the goods as 20000 MT primary nickel in the form of Cathdes "4x4" (unwrought and unalloyed) of LME registered brand. In the case of Hindustan Aluminium Corporation Ltd. v. State of Uttar Pradesh reported in [1978] 41 STC 147 (All); [1977] UPTC 81 question for consideration before the Division Bench was about the taxability of various types of aluminium products. The claim of the company was that the various products manufactured by the company were liable to tax as a metal. Division Bench of this court held as follows: " . . . In the present case, it is not disputed that aluminium as a pure metal does not occur. It occurs in the form of bauxite. From bauxite, alumina is extracted, and therea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ots, wire bars and billets are concerned, the process for manufacture of these items is similar to those of aluminium ingots. Standing counsel could not dispute this. There is no justification for treating aluminium alloy ingots, wire bars and billets as not coming within the description of 'metals and alloys'. The dispute so far as cast products are concerned centres round properzi redraw rods. We have already set out the process of manufacture of properzi redraw rods. Counsel for the State contended that as soon as molten metal is solidified into 12 sq. centimeter cross-sections, they assume the nature of a commercial commodity and, subsequently, when they are further processed by being fed into the properzi mill, another new commodity, properzi redraw rods, comes into existence. Parties do not appear to have led evidence on the point as to whether the solidified 12 sq. centimeter cross-sections are a commercial commodity at that stage. As such it would not be proper to decide in these proceedings as to whether properzi redraw rods fall within the description of 'metals and alloys' without giving the parties a further opportunity to lead evidence in the matter. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4x4". Therefore, prima facie it appears that nickel strips and bars, which were imported and sold were primary nickel in the form of cathode. Decision of the apex court in the case of Hindustan Aluminium Corporation Ltd. v. State of Uttar Pradesh in [1981] 48 STC 411; [1981] UPTC 1249 and Commissioner of Sales Tax v. Gulati and Co. [1982] 4 STL All 16, which were made basis for initiating the proceedings under section 22 of the Act were not relating to nickel strips. Therefore, in any view of the matter, it was doubtful whether item imported and sold by the dealer were not in a primary form. Under section 22 of the Act only mistake apparent on the face of record can be rectified. Those mistakes, which requires investigation and are doubtful, and where two opinions are possible cannot be said to be mistake apparent on record and are outside the purview of section 22 of the Act. In the case of Balaram (T.S.), Income-tax Officer v. Volkart Brothers reported in [1971] 82 ITR 50, the honourable Supreme Court has held that the mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on point ..... X X X X Extracts X X X X X X X X Extracts X X X X
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