9911796707
TMI Blog2010 (7) TMI 936X X X X Extracts X X X X X X X X Extracts X X X X ..... es of the case, the Tribunal which is the final fact finding authority is legally correct in having concluded that the assessee after having purchased frames have sold them as such without fitting them into spectacles while the assessing authority has given categorical finding that the frames had not been sold as such without fitting them in spectacles? (2) Whether the order of the Tribunal in not having restored the penalty levied under section 12(3)(b) of the Tamil Nadu General Sales Tax Act, 1959 is legally sustainable?" According to the petitioner, the sale of spectacles by the respondent/ assessee is liable to be taxed as a single item of product falling under item 54 of Part C of the First Schedule to the Tamil Nadu General Sales Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessing officer as well as the first appellate authority. We heard Mr. Haja Naziruddin, learned Special Government Pleader and Mr. A. Thiagarajan, learned senior counsel appearing for the respondent/ assessee. At the outset, we wish to state that we are not inclined to agree with the contentions made on behalf of the respondent/assessee that manufacture of spectacles is governed by the concept of works contract covered by section 3B of the Tamil Nadu General Sales Tax Act, 1959. In the first place, what is sold by the respondent/assessee to their customers is the spectacle. The spectacle is manufactured to the requirement of each of the customers based on a prescription of an opthalmologist. What is significantly absent in that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is part of a spectacles, has already suffered tax, inasmuch as such frames were purchased by the respondent/assessee independently, at which point, levy of tax has taken place. Similarly, lenses are also independently purchased by the respondent/assessee. The purchase of such lenses also suffered tax in the first point. When the respondent/assessee indulged in the process of manufacture of spectacles, depending upon the prescription of each of the customers, the lens had to be necessarily ground in order to achieve the power prescribed, which also involves certain other process, such as shaping according to the slot in the frame in order to make a snugly fitting. Therefore, lenses which are either common in size or even in different sizes, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suffered tax at the point of first sale, there is no reason why the respondent/assessee should suffer payment of tax again when its sale to its customer will be a second sale and not at the point of first sale. The conduct of the respondent/assessee in having raised two separate bills, one for the frame and other for lens while delivering the spectacles to its customers, cannot be held to be an act of evasion of tax by the respondent/ assessee. It is well known canon of construction in taxation field that avoidance is not evasion. It will also be relevant to state that in a spectacle the lens being detachable, the customer can always use the frame separately by getting a different lens fixed depending upon the need, may be due to any change ..... X X X X Extracts X X X X X X X X Extracts X X X X
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