TMI Blog2014 (7) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... stinguishable. In the judgment on which the High Court relied, there is no finding by the Tribunal, the last fact-finding authority, on the nature of the goods, which was the subject-matter of the disputed transaction. Therefore, there is substantial factual difference between the present case and the case on which the High Court relied while dealing with the revision proceedings before it. High Court was not correct in relying on a decision, which is factually distinguishable - Matter remanded back to high court - Decided in favour of assessee. - Civil Appeal No. 2363 of 2007 & Special Leave Petition (Civil) No. 2148 of 2008 - - - Dated:- 10-8-2011 - JAIN D.K. AND ASOK KUMAR GANGULY, JJ. The judgment of the court was delivered by ASOK KUMAR GANGULY J. Heard learned counsel for the parties. This appeal is directed against the judgment and order passed by the High Court in trade tax revisions in exercise of its revisional jurisdiction under section 11 of the U.P. Trade Tax Act, 1948 (hereinafter referred to as, the Act ). The order of the Tribunal dated April 22, 1996, relating to assessment years 1988-89 and 1989-90 was impugned in revisions before the High Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) Any person aggrieved by an order made under sub-section (4) or sub-section (5) of section 10, other than an order under sub-section (2) of that section summarily disposing of the appeal, or by an order passed under section 22 by the Tribunal may, within ninety days from the date of service of such order, apply to the High Court for revision of such order on the ground that the case involves any question of law. (2) Any person aggrieved by an order made by the revising authority or an additional revising authority refusing to state the case under this section as it stood immediately before April 27, 1978, hereinafter referred to as the said date, may, where the limitation for making an application to the High Court under sub-section (4) as it stood immediately before the said date, has not expired, likewise apply for revision to the High Court within a period of ninety days from the said date. (3) Where an application under sub-section (1) or sub-section (3), as they stood immediately before the said date, was rejected by the revising authority or an additional revising authority on the sole ground that the period of one hundred and twenty days for making the reference as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of any disputed amount of tax, fee or penalty payable, or refund of any amount due, under the order sought to be revised: Provided that no order for the stay of recovery of such disputed amount shall remain in force for more than thirty days unless the applicant furnishes adequate security to the satisfaction of the assessing authority concerned. (8) The High Court shall, after hearing the parties to the revision, decide the question of law involved therein, and where as a result of such decision, the amount of tax, fee or penalty is required to be determined afresh, the High Court may send a copy of the decision to the Tribunal for fresh determination of the amount, and the Tribunal shall thereupon pass such orders as are necessary to dispose of the case in conformity with the said decision. (8A) All applications for revision or orders passed under section 10 in appeals arising out of the same cause of action in respect of the same assessment year shall be heard and decided together: Provided that where any one or more of such applications have been heard and decided earlier, if the High Court, while hearing the remaining applications, considers that the earlier deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods purchased from any person other than a registered dealer; (iii) the purchasing dealer resells such goods within the State or in the course of inter-State trade or commerce or exports out of the territory of India, in the same form and condition in which he had purchased them; (iv) such goods are liable to be exempted under section 4A of the Act. The relevant entries which are covered in this controversy as per notifications dated September 7, 1981 and May 31, 1985 are as under: S. No. Description of goods Point of tax Rate of tax ... ... ... ... 31. Oils of all kinds, other than those covered by any other entry of this list or by any other notification issued under the Act M or I 4 per cent 32. Old, discarded, unserviceable or obsolete machinery, stores or vehicles including waste products except cinder, coal ash and such items as are included in any other notification issued under the Act. Sale to consumer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty, finds that those factual conclusions by both the appellate authorities are perverse, it cannot overturn the same by relying on a judgment which is factually distinguishable. In the judgment on which the High Court relied, there is no finding by the Tribunal, the last fact-finding authority, on the nature of the goods, which was the subject-matter of the disputed transaction. The case on which the High Court relied, namely, in the case of Industrial Lubricants [1984] UPTC 1101, is not the case of a dealer who after purchasing burnt mobil oil, manufactures refined mobil oil from that raw material. But the Tribunal in the instant case has found on the facts that the appellant herein manufactured refined mobil oil from burnt mobil oil. Therefore, there is substantial factual difference between the present case and the case on which the High Court relied while dealing with the revision proceedings before it. We are of the view that the High Court was not correct in relying on a decision, which is factually distinguishable. For the reasons aforestated, we cannot sustain the order of the High Court. The order of the High Court is quashed. We remand the matter to the High Court a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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