TMI Blog2008 (11) TMI 629X X X X Extracts X X X X X X X X Extracts X X X X ..... er cent of the MRP which is the assessable value as computed for the purpose of the Central Excise Act, 1944. There appears to be nothing brought on record by the assessing authority to prove the case of under-billing or charging of anything beyond the disclosed sale consideration in its returns or invoices. It is doubtless that the burden of proof in this regard lies upon the Revenue. Even if the difference between MRP and the sale consideration shown by the assessee may appear to be huge, it can at best give rise to the initiation of proceedings which the assessing authority may initiate for discharging the aforesaid burden of proof as it is a question of fact whether the assessee has charged something extra beyond the disclosed sale c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Act was hypothetical sale consideration as far as respondent-assessee was concerned and without discharging burden of proof which lay upon the Revenue to establish that the respondent-assessee had collected anything beyond the sale consideration disclosed in the sale invoices, returns and books of account maintained in the regular course of business, the appellate authorities concurrently held that, the assessing authority could not impose any such additional sales tax. In the present revision petitions filed by the Revenue, the learned counsel for the Revenue Mr. Vineet Mathur and Mr. Rishabh Sancheti candidly submitted that as far as question of law is concerned, with the latest decision of the honourable Supreme Court in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the taxable event that has occurred, the amount received or receivable is assumed to be different from that which is neither received nor receivable and that amount which neither flows from the Control Order, nor which flows from the buyer to the seller under the contact but is relatable to a transaction of sale by a retailer which may not have come into existence. The honourable Supreme Court said in para 50 (page 559 of STC) as under: ...Substitution of assumed price or the assumed quantity in place of actual price/quantity in a completed sale transaction, for the purpose of levy of tax on the subject-matter of tax results in taking away from it the character of 'sale of goods' as envisaged under the Sales Act. Uphold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mulation before end sale is to be determined within prescribed limits. 47.. The charging section 4 stipulates that the tax payable by a dealer under the Act shall be at single point in the series of sales by successive dealers, as may be prescribed and shall be levied at such rates not exceeding fifty per cent on the taxable turnover, as may be notified by the State Government in the Official Gazette. This shows that there is no scope for multi-point levy of tax and the tax is levied on the first point sale within the State in a series of sales and tax is leviable at the rate applied to aggregate of price received or receivable by the dealer on such sales. 48.. Section 4A does not become workable unless read along with definitions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istence of contract of sale of drugs by legal fiction which has not taken place and which cannot be considered to be a sale in the manner stated in the Sales Act, which alone can be subject of tax under entry 54 in List II. Substitution of assumed price or the assumed quantity in place of actual price/quantity in a completed sale transaction, for the purpose of levy of tax on the subject-matter of tax results in taking away from it the character of 'sale of goods' as envisaged under the Sales Act. 51.. Another distinguishing feature to be kept in mind is that the central point of legislation under entry 54 of List II of the Seventh Schedule is 'sale' in contrast with the central point of legislation under entry 84 of L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urchase. 55.. If the legislation can provide for a measure of tax on subject of tax by substituting any notional value, which at no point of time becomes part of or related to subject of tax, viz., sale of goods, then the fact that it is related to MRP loses its significance altogether. If this is permitted to be done, the legislation can provide for any measure the purpose of applying the rate of tax, whether it is founded on MRP or any other fixed value which Legislature may provide will make little difference. It is not contended by the appellant that even if the measure is not relatable to MRP, it can substitute any value as a measure of tax. Subject of tax is not the goods or goods sold, but a transaction of 'sale of goods' ..... X X X X Extracts X X X X X X X X Extracts X X X X
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