9911796707
TMI Blog2014 (8) TMI 892X X X X Extracts X X X X X X X X Extracts X X X X ..... .P. and others, are being taken into consideration. The petitioner is a Limited Company and undertakes works contract for different companies. Northern Coalfields Ltd., Sonebhadra (hereinafter referred to as "NCL") has an open cast coal mines and pays royalty to the State Government. Open cast mine is a different method on extracting rock or minerals from the earth by their removal from an open pit or burrow. This is different from the mining of minerals, which requires tunneling into the earth. Open pit mines are used where deposits of minerals is found near the surface, i.e., where the over burden (surface material covering the valuable deposit) is relatively thin or the material of interest is structurally unsuitable for tunnelling. NC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment, respondent No.3, granted facility to the petitioner to purchase goods, namely, heavy earth movers, excavators, dumpers, tippers, etc. at concessional rate of tax against Form-C. The petitioner started executing the works contract and, for the purpose of removing the over burden, required machineries for the execution of the works contract. Since the petitioner was eligible to purchase the same from outside the State of U.P. at concessional rate of tax, the petitioner applied for issuance of Form-C from the office of respondent No.3. In the application, the petitioner categorically stated that Form-C would be required for the purchase of machinery such as excavators from outside the State of U.P. for use in the works contract at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said order of penalty, has filed the present writ petition. We have heard Sri S.D.Singh, the learned senior counsel along with Sri Nishant Mishra for the petitioner and Sri C.B.Tripathi, the learned counsel for the State. A preliminary objection was raised that the petitioner has an efficacious remedy of filing an appeal against the order of penalty and, consequently, the writ petition should be dismissed on the ground of alternative remedy. We have given our thoughtful consideration on this aspect and we find that the writ petition was entertained in the year 2008 and affidavits have been exchanged and, consequently, we are of the opinion, that at this stage it will not be appropriate or conducive to relegate the petitioner to the reme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concessional rate of tax for use in mining can be purchased at concessional rate of tax. The petitioner applied for registration under Section 7 of the Act, which was duly granted. While granting the registration, the Assistant Commissioner, Commercial Tax Department specifically allowed the petitioner the facility to purchase heavy earth mover, excavators, dumpers etc. at concessional rate of tax against Form-C. The petitioner applied for Form-C, which was duly granted to him and thereafter purchased the excavators etc. for the purpose of execution of the works contract on concessional rate of tax against Form-C duly issued by respondent No.3. The penalty has been imposed under Section 10-A(1)of the Act, which reads as under: "10A. Impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s when purchasing goods in the course of inter-State trade or commerce that he is a registered dealer ; or (d) after purchasing any goods for any of the purposes specified in clause (b) or clause (c) or clause (d) of sub-section (3) or sub-section (6) of section 8 fails, without reasonable excuse, to make use of the goods for any such purpose;" The impugned order indicates the reason for imposition of penalty, namely, that since the petitioner has not admitted any tax liability on the execution of the works contract, hence the petitioner has contravened the provisions of Section 10-A of the Act. Such reasoning is patently perverse and does not come within the parameters of imposition of penalty under clause (b), (c) and (d) of Section 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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