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TMI Blog2010 (8) TMI 836X X X X Extracts X X X X X X X X Extracts X X X X ..... aring for the petitioner and Sri. Mohammed Rafiq, Government Pleader appearing for the respondent. The petitioner is a public sector oil company engaged in local sale as well as inter-State sale of petroleum products. During the year 1998-99, part of the turnover of inter-State sale of HSD and bitumen made by the petitioner was not covered by C forms. Consequently under section 8(2)(b) of the Central Sales Tax Act, 1956, the petitioner was liable to pay tax at 10 per cent or at such higher rate payable for local sale of the goods. According to the petitioner, the Schedule rate of tax reduced by notification issued by the Government for HSD was 15 per cent and for bitumen, 12.5 per cent. However, when assessment was completed, the assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods other than declared goods, shall be calculated at the rate of ten per cent or at the rate applicable to the sale or purchase of such goods inside the appropriate State, whichever is higher; and (c) in the case of goods, the sale or, as the case may be, the purchase of which is, under the sales tax law of the appropriate State, exempt from tax generally shall be nil, and for the purpose of making any such calculation under clause (a) or clause (b), any such dealer shall be deemed to be a dealer liable to pay tax under the sales tax law of the appropriate State, notwithstanding that he, in fact, may not be so liable under that law." The Tribunal has decided the issue against the petitioner following decision of the Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ale of goods and in view of the decision of the Supreme Court abovereferred declaring that the legislation has it's source in entry 54 of List II of the Seventh Schedule to the Constitution, all such taxes will go to form the rate of tax for the goods referred to in section 8(2)(b) of the CST Act. Section 8(2)(a) and 8(2)(b) of the CST Act are certainly charging sections and those are exceptions to section 8(1) which refers to sale made to State Government and sale made to registered dealers against declaration furnished in form C. It is pertinent to note that section 8(2)(a) and 8(2)(b) refers to only rate of tax and not sales tax payable under various charging sections of the sales tax laws of the State. The various Schedules of the Sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the surcharge payable under the Kerala Act. So far no decision of the Supreme Court is brought to our notice reversing the judgment of the Madras High Court. Therefore, following the decision of the Madras High Court in Engine Valves case [1993] 90 STC 84 (Mad) and the decision in Aysha Hosiery case [1992] 85 STC 106 (SC) abovereferred, we hold that surcharge forms part of the rate of tax for the purpose of section 8(2)(b) of the CST Act. Of course the appli cation of surcharge will lead to a situation where different dealers on inter-State sale of same commodity without being covered by C form will be subject to different rate of tax under section 8(2)(b). This is because surcharge is payable at five per cent, if turnover is below Rs. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of goods.-. . . (2C)(i) Notwithstanding anything contained in this Act or the Rules made thereunder every dealer shall pay turnover tax on the turnover of goods as specified hereunder, namely,- (a) by an oil company defined in the Explanation under serial number 108 of the First Schedule to this Act whose total turnover in a year exceeds rupees fifty lakhs at the rate of three per cent on the turnover from the 1st day of April, 1991 till 31st day of July, 1991 and thereafter at the rate of four per cent on the turnover." The Government Pleader contended that by virtue of the decision of this court abovereferred, turnover tax is also sales tax and when it is a percentage of the turnover under the charging section, it also constitutes rate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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