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TMI Blog2011 (7) TMI 1056X X X X Extracts X X X X X X X X Extracts X X X X ..... Sri B.K. Pandey, learned standing counsel. The applicant was carrying on the business of polyester staple fibre and staple fibre waste. According to the learned counsel for the applicant for both the assessment years, the applicant had deposited the tax on the turn over of inter-State sales of stable fibre waste at four per cent as the rate of tax was not settled and ultimately settled by this Court. This court in the case of assessee itself, Swadeshi Polytex Limited v. CTT reported in [1995] NTN 538, has held that staple fibre waste is also staple fibre and liable to tax at two per cent and along with surcharge at 2.5 per cent. He further submitted that the tax has been calculated on the turnover in accordance with formula given in sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Central Act and claimed deduction of the amount from the amount realised from the customers shows that the tax has been realised from the customers. Applying the provisions of section 29A of the Act refund has been denied. The learned counsel for the applicant submitted that no tax had been realised from the customers in the bill, which is not in dispute. The first appellate authority has sought report from the assessing officer about the realisation of tax on the bills and the assessing authority on the examination of all the bills reported that no tax had been charged on the bills. The tax had been paid at 2.5 per cent was payable on the net turnover determined under section 8A of the Central Act. Section 8A of the Central Act does no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the aggregate of sale prices. Explanation.-Whether the turnover of a dealer is taxable at different rates, the aforesaid formula shall be applied separately in respect of each part of the turnover liable to a different rate of tax; (b) the sale price of all goods returned to the dealer by the purchases of such goods,- (i) within a period of three months from the date of delivery of the goods, in the case of goods returned before the 14th day of May, 1966; (ii) within a period of six months from the date of delivery of the goods, in the case of goods returned on or after the 14th day of May, 1966: Provided that satisfactory evidence of such return of goods and of refund or adjustment in account of the sale price thereof is produced b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he date of the order of assessment or one year from the date of the final order on appeal, revision or reference, if any, in respect thereof, whichever is later. Explanation.-The expression 'final order on appeal, revision or reference', includes an order passed by the Supreme Court under article 32, article 132, article 133, article 136 or article 137 or by the High Court under article 226 or article 227 of the Constitution." I find substance in the argument of learned counsel for the applicant. Section 8A(1) of the Central Act provides determination of the turnover for the purpose of the Act. By permitting a deduction from the aggregate of the sale price as per formula given therein, it appears that intent of this formula is tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcept as provided for under sub-section (3) of section 29A of the Act. Section 8A(2) of the Act provides that dealer may recover an amount equivalent to the amount of trade tax on sale of goods payable from the person to whom the goods are sold by him. Clause (ii) of subsection (4) of section 8A of the Act further provides that where a registered dealer realises trade tax on sale of goods from the purchasers the cash memos or the bills shall separately show the price of goods sold and the amount realised as tax. From the perusal of the aforesaid provisions of section 29A of the Act read with section 8A of the Act, it appears that the amount realised as trade tax and shown separately in the cash memos or bills in excess of tax payable, shal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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