9911796707
TMI Blog2010 (7) TMI 922X X X X Extracts X X X X X X X X Extracts X X X X ..... sment year 2001-02 (U.P. and Central) (annexure 4 to the writ petition). (ii) to issue a writ, order or direction in the nature of certiorari quashing the notices dated March 28, 2008 issued by respondent No. 3 for the assessment year 2001-02 (U.P. and Central) (annexure 5 to the writ petition). (iii) to issue a writ, order or direction in the nature of mandamus directing respondent No. 3 to refrain from proceeding to reassess the petitioner under section 21(2) of the Act for the year 2001-02 (U.P. and Central). (iv) to issue a writ, order or direction in the nature of mandamus directing respondent No. 3 to refrain from recovering any tax in respect of reassessment under section 21(2) of the U.P. Trade Tax Act for the assessment year 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... product was taxed at the rate of four per cent and this is apparent from the assessment orders, which were passed for the petitioner both under Central Act and Act. These assessment orders have been placed by the petitioner as annexure 1 to the writ petition. As it was provided under section 4BB of the Act, the petitioner also claimed a set-off for the tax paid on the purchase of raw material under a Notification No. 1223 dated May 22, 1998 as a result of this, a sum of Rs. 1,34,279 was reduced from the liability of tax created in respect of the assessment for the year in question. After a gap of several years, the Additional Commissioner (Commercial Tax), Meerut, issued a notice under section 21(2) of the Act on March 17, 2008 wherein he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Additional Commissioner. The learned counsel for the petitioner has referred to the manufacturing process under which iron and steel is cut into small pieces in desired size and thereafter pressed into loose shape and just after, it is dipped into oil to produce uniform hardening. This process, he states, conforms to the method of forging as described in standard text book on forging products. The learned counsel has submitted that elastic rail clips manufactured by the petitioner cannot be manufactured by any other process other than by forging. The main plank of the argument of the petitioner's counsel is that the petitioner had placed before the Additional Commissioner the decision of the honourable apex court in the case of Ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner has also contended that respondent No. 2 while authorising respondent No. 3 to reopen the petitioner's case has wrongly relied upon the decision of the honourable Madras High Court in the case of Opera Arts Industries v. Registrar, Tamil Nadu Taxation Special Tribunal reported in [2005] 142 STC 113, in which the honourable Madras High Court has simply stated that it is not in agreement with the view taken by CEGAT in the decision of Sikka Heat Treatment Centre [1996] 81 ELT 628. The learned counsel has contended that the Madras High Court has not taken into consideration the fact that the apex court in the case of Vee Kay Industries [1997] 94 ELT 5 had accepted the decision of the CEGAT and also on its own taken a view th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arguments as raised by the learned counsel for the petitioner have substance. However from the facts, it clearly emerges that the decision of the CEGAT in the case of Sikka Heat [1996] 81 ELT 628, which relates to the classification of the same, i.e., elastic rail clips has been conformed and approved by the honourable Supreme Court in the case of Vee Kay Industries [1997] 94 ELT 5 (SC). The Supreme Court has clearly stated that the elastic rail clips are forgings. In this view of the matter, we are of the view that the elastic rail clips are classified items under section 14 of the Central Act. Upon reading of the Madras High Court decision, it appears that this factum has not been noticed by the Madras High Court. However since it is cle ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
