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TMI Blog2009 (10) TMI 862X X X X Extracts X X X X X X X X Extracts X X X X ..... section 24 of the Act only on the ground that the Tribunal has either failed to decide or decided erroneously any question of law. Such being the admitted position, the question of law raised in the reference as quoted supra is reiterated before us by Mr. R.P. Kar, learned counsel for the Revenue in course of hearing of this revision. The facts relevant to the question referred to supra may be stated in short. On the basis of new case report No. 42 dated September 22, 1986 submitted by the Inspector of Sales Tax, Vigilance Wing, Cuttack (hereinafter referred to as "Inspecting Officer") assessment proceedings under section 12(5) of the Act for three assessment periods, viz., 1984-85, 1985-86 and 1986-87 were initiated against the opposite-party. This revision is concerned with the assessment period 1986-87 only. The Inspecting Officer visited the business premises of the opposite-party on August 7, 1986. He happened to detect 39 pieces of pure silk sarees (which are the subjectmatter of dispute in the present revision) among other articles in the stock of the opposite-party kept for sale. In course of the inspection, the Inspecting Officer recorded a statement of the opposite-party ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the year 1986-87 and it was ascertained that during the year 1986-87 pure silk sarees were not available in the market at a cost of Rs. 250 per piece. In view of this I feel that merely because the words 'pure silk' were printed on the body of the sarees, the nature of sarees cannot be changed from the artificial silk saree to pure silk saree particularly when the price was Rs. 250 only. Law envisages that tax be imposed on pure silk saree but not on artificial silk saree. In view of this there is no material to conclude that the dealer was carrying on business in pure silk saree and as such it would not be proper to assess him to tax for possession of artificial silk saree only. I am therefore inclined to accept the contention of the learned advocate and accordingly the taxable turnover determined by the forums below for imposition of tax during the year 1986-87 is also annulled." It is pertinent to mention here that in course of hearing of the second appeal learned counsel appearing for the dealer (present opposite-party) produced before the Tribunal one pure silk saree and one piece of saree found by the Inspecting Officer on the date of his inspection, i.e., Augus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the inspecting officer from the business premises of the opposite-party cannot be made exigible to tax as pure silk saree, without further materials to prove that those sarees are actually pure silk sarees but, however, there is no material worth the credence to conclude that the sarees kept for sale by the opposite-party on the relevant date of inspection are pure silk sarees. He further submits that the Tribunal being the final forum of facts, has got every authority and jurisdiction to satisfy itself about the legality of the assessment; the saree in question was produced by the opposite-party before the Tribunal in presence of the State Representative and Tribunal in presence of State Representative without objection by him, has examined the saree; the Tribunal has further compared that saree with a pure silk saree and has come to the conclusion that the saree alleged to be detected from the stock-in-trade of the opposite-party is of inferior quality and is not a pure silk saree; and above all in reaching such a conclusion, the Tribunal has further relied on the minimum price of pure silk saree available in the market then. In view of such fact, it is submitted by learned coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thing on record to show or suggest that the opposite-party has sold any saree like the bulk detected with the label of "pure silk" saree at a price more than Rs. 250 per piece. The finding of the assessing officer on this aspect regarding variance of sale price of sarees between Rs. 235 to Rs. 860 is too far-fetched inasmuch as there is nothing to connect the sale memos with a higher price tag with the sale of sarees like the bulk detected with the label of "pure silk". In view of such position, the findings of the learned assessing officer have no basis except the alleged admission of the opposite-party recorded on August 7, 1986 and it is fairly submitted by Mr. R.P. Kar, learned counsel for the Revenue that the aforesaid alleged admission by the opposite-party before the inspecting officer is the sole basis of assessment and the same is also the sole basis of reference to this court by the Tribunal as found from the question for reference. The learned authorities or fora below taking into consideration the number of facts and especially the admission of the opposite-party as recorded by the inspecting officer on August 7, 1986 have come to two divergent conclusions. As discusse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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