TMI Blog2014 (5) TMI 455X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissed since petitioner(s) did not exhaust the remedy available to them - Decided against the assessee. - CWP No. 12804 of 1992 and connected petitions - - - Dated:- 6-1-2012 - M. M. Kumar And Ajay Kumar Mittal,JJ. For the Petitioner : Mr. Sandeep Goyal, Advocate For the Respondent : Mr. Piyush Kant Jain, Addl. AG, Punjab ORDER M. M. Kumar, J. 1. This order shall dispose of a bunch of petitions* involving identical question of law and facts. It may be mentioned that in CWP No. 12906 of 1992 the dealer-petitioner has straightaway come to this Court challenging the notice issued by the Assistant Excise and Taxation Commissioner invoking his suo motu powers under Section 21(1) of the Punjab General Sales Tax Act, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il and, thus, entitled to the concessional rate of tax @ 1% as per notification dated 11.1.1979. On 22.7.1991, the appeal was dismissed by holding that the cotton seed oil as such is not edible oil nor is known as edible oil in common parlance. The Appellate Authority has further found that the petitioner was not able to prove that the cotton seed oil sold by it was of edible range and it was refined by it or by the dealer from whom it has made the purchases. It has been specifically noticed that the petitioner is a trader only having no refinery with it. Thus, it has been concluded that the Assessing Authority was justified in levying tax @ 4% instead of 1% (P-3). The petitioner further filed an appeal under Section 9(2) of the CST Act rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Commodities Act, whereby the expression edible oil was defined as under:- 2(g) Edible Oil means oil used, directly or after processing, for human consumption and includes hydrogenerated vegetable oil. 5. The petitioner has also referred to the instructions issued by the Directorate of Marketing and Inspection, Ministry of Food and Agriculture (Department of Agriculture), Government of India, regarding Agmark Grade Designations and definitions of quality for cotton seed oil (P-2). As per these instructions the edible oil has been described as refined edible oil and washed edible oil and under the heading of washed edible oil the following description has been given: Washed (Edible) Cotton seed shall be the oil of plant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions is no longer res integra and has been settled by the Letters Patent Bench of this Court by its judgment rendered in the case of State of Punjab and others v. Milkhi Ram Oil and Dall Mills, (1998) 118 PLR 103. The Letters Patent Bench has dismissed various appeals and writ petitions including LPA No. 75 of 1992, which was relatable to CWP No. 6919 of 1987, decided on 18.7.1991. 9. In the case of Milkhi Ram Oil and Dall Mills (supra), the writ petitioner had filed quarterly returns for the years 1981-82, 1982-83 and 1983-84 within time and deposited the tax. In view of the notification dated 11.1.1979 issued by the State of Punjab reducing the tax from 4% to 1% on the interstate sales of cotton seed oil and other seed oil, the assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It was also contended that the point urged by the petitioner was, in fact, a pure question of fact i.e. whether cotton seed oil is edible or non-edible. 10. Having exhaustively considered the matter in the light of various judgments and provisions of the Act, their Lordships of the Letters Patent Bench were of the opinion that the only issue involved was Whether cotton seed oil per se is edible oil and so leviable at the rate of 1 per cent for the purpose of sales tax assessment . Answering the said question it has been concluded that it is a question of fact which could not be examined by the Court under Article 226 of the Constitution. In para 20 of the judgment, their Lordships of the Letters Patent Bench have observed as under:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the charge does not fail. In the present case if we construe the words 'on the basis of return' occurring in Sub-section (2) of Section 7 of the Act as on the basis of a true and proper return which ought to have been filed Under Sub-section (1) of Section 7 then all the three classes of persons, viz., (i) those who have not filed any return at all and who are later on found to be liable to be assessed, (ii) those who have filed a true return but have not deposited the full amount of tax which they are liable to pay, and (iii) those who have filed a return making a wrong claim that either the whole or any part of the turnover is not taxable and who are subsequently found to have made a wrong claim, would be placed in the same positio ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
