TMI Blog2011 (1) TMI 1288X X X X Extracts X X X X X X X X Extracts X X X X ..... inding recorded by the Commissioner is based on legal evidence, in accordance with law and do not call for any interference. The right of appeal has to be worked out within the four corners of law. When the law provides for a statutory appeal against the order of the Commissioner it is not open to the assessee to contend that he should have a right of first appeal, second appeal or revision as provided against the assessment order and therefore we do not see any merit in the said contention. Appeal dismissed. - S.T.A. No. 74 of 2009 - - - Dated:- 13-1-2011 - KUMAR N. AND RAVI MALIMATH JJ. G. Rabinathan and M. Thirumalesh for the appellant Smt. Sujatha, Government Advocate, for the respondents ORDER This appeal is filed by the assessee challenging the order passed by the revisional authority under section 22A(ii) of the Karnataka Sales Tax Act, 1957, forfeiting the sales tax paid by the assessee to the Government and rejecting his request for refund of the wrongly collected amount. The assessee is a trader dealing with gutkha, panmasala, being tobacco products. Initially, no sales tax was leviable on the said tobacco products. However, by an amendment to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Taxes exercising powers under section 18AA of the Act held the tax paid cannot be forfeited because no tax is collected by the assessee in the bills and therefore he is entitled for refund of the same by his order dated May 28, 2007. After passing of the said order the Commissioner of Commercial Taxes issued a notice under section 22A(2) of the KST Act calling upon the assessee to show cause as to why the said order of the Deputy Commissioner of Commercial Taxes should not be set aside and the amount of ₹ 8,60,801 which is wrongly paid by him should not be forfeited. Thereafter the assessee appeared before him and filed a detailed statement of objections and also produced the documents which were in his custody and contended that the said amount cannot be forfeited but it has to be refunded. In the course of the said proceedings the Commissioner wanted to look into the documents pertaining to other dealers who are in the same business. For the purpose of comparison with the assessee's returns he issued one more notice bringing to their notice those extraneous matters and calling upon the assessee to have his say in the matter. Even to that the assessee filed his reply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that the assessee is a registered dealer under the Act and carrying on the business under the name and style of M/s. Suresh Agencies at Mangalore and dealing in tobacco, gutkha and pan parag. It is also not in dispute that the assessee is not a manufacturer of the said product. The assessee was not paying any sales tax on the said products in particular pan parag because the said goods were entered in Fifth Schedule up to March 31, 1997. Even now the said entries continues in the Fifth Schedule. The said entry was deleted for the first time with effect from April 1, 2002. Therefore as there was no liability to levy and pay tax on tobacco products admittedly the assessee has not paid any tax to the Government in respect of the said goods. The Karnataka Legislature by Act No. 7 of 1997, which came into effect on April 1, 1997, amended the Second Schedule and introduced entry 9A at Part T as under : Sl. No. Description of goods Period for which Applicable Rate of tax 9A Tobacco products including gutkha and the like but excluding such products as specified elsewhe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... way of tax from any person by any dealer in contravention of section 18, whether knowingly or not, such dealer shall pay the entire amount so collected, to the assessing authority within twenty days after the close of the month in which such amount was collected, notwithstanding that the dealer is not liable to pay such amount as tax or that only a part of it is due from him as tax under this Act. (2) If default is made in payment of the amount in accordance with sub-section (1), (i) the whole of the amount outstanding on the date of default shall become immediately due and shall be a charge on the properties of the dealer; (ii) the dealer liable to pay the amount shall pay interest at the rate of two and one half per cent of such amount for each month of default; and (iii) the whole of the amount remaining unpaid along with the interest calculated under clause (ii) of this sub-section shall be recoverable in the manner specified in section 13. (3) Notwithstanding anything contained in this Act, or in any other law for the time being in force, any amount paid or payable by any dealer under sub-section (1), shall, to the extent it is not due as tax be forfeited to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner was in error in ignoring the same and in setting aside the order of the Deputy Commissioner of Commercial Taxes and in forfeiting the said amount. It is further argued that the court cannot draw any presumption in law that the assessee has collected the tax from its customers. Whether the tax is collected or not is purely a question of fact. It has to be decided from the facts and circumstances of each case. Seen from any angle it was contended that there is no material on record which shows that the assessee has collected the tax from the customers whereas the material on record shows that he has not collected the tax and therefore the order passed by the Tribunal is erroneous. We have gone through the order passed by the Commissioner. The Commissioner has taken pains not only to consider the detailed pleadings of the parties but also the records produced by him. At page 6, para 11 it is stated that I have closely examined the documents found in the related assessment file of the DCCT. One such document is the statement of purchase and sales furnished by the assessee to the DCCT, found at pages 43 to 47 of the file. In page 43, the worth of goods sold locally is shown as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contend that they have not collected the tax from the customers. It is in this context the Commissioner at para 12 was right in observing that as the law stood then, gutkha was not exempt from sales tax. So, the assessee was very well aware that she is liable to collect and pay sales tax on gutkha sold by her. She was also aware that sales tax is levied at the point of sale and therefore she was required to collect it from her customers. When that is so, a question arises as to what prevented her from collecting the sales tax from her customers and showing the sales tax amount separately in the sale bills. Having a legal obligation and right to collect the sales tax in the sale bills and then an obligation to remit the same to the Government, the assessee purportedly remitted the same out of her gross profit . The finding is based on the aforesaid material on record. It is not a mere assumption or guesswork by the Commissioner. The Commissioner did not stop there. He also wanted to make sure factually that the said finding is correct. Therefore, he secured the sales bills and sales particulars of other dealers who are dealing with the very same products before acting on the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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