9911796707
TMI Blog2012 (4) TMI 543X X X X Extracts X X X X X X X X Extracts X X X X ..... unit or sick unit or sick textile mill of the whole or any part of the tax payable in respect of any period. The condition specified includes the intended seekers of such concession to get the eligibility certificate from the State Industries Promotion Corporation of Tamil Nadu Limited (for short, "SIPCOT"). The petitioner having availed of the concession for deferring the payment of sales tax for the period from March 1, 1995-March 31, 1995 to April 1, 2004-February 28, 2005 for a period of 10 years, has to repay the tax in addition to the existing tax starting from March 1, 2005-March 31, 2005 till April 1, 2014-March 31, 2015. Paragraph 5.2 of the eligibility certificate obliges the petitioner-company to enter into an agreement with the Assistant Commissioner (Commercial Taxes) concerned as per the terms and conditions stipulated by the Department. 3. In the present case, the controversy arose out of paragraph 5.3 of the eligibility certificate which reads as follows: "5.3. The company is eligible for deferral of sales tax only on the increased volume of production/sales. For the purpose of determining the increased volume of production, the base figure would be the highest o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 63,19,332 2001-02 1,18,56,251 13,82,349 1,32,38,600 2002-03 1,15,72,911 66,02,117 1,81,75,028 2003-04 1,68,88,810 7,30,435 1,76,19,245 2004-05 2,12,03,493 91,41,858 3,03,45,351 2005-06 3,18,41,161 1,02,99,489 4,21,40,650 2006-07 3,17,07,215 1,21,89,818 4,38,97,033 2007-08 2,79,46,138 43,88,008 3,23,34,146 2008-09 2,54,51,543 19,78,907 2,74,30,450 2009-2010 72,45,475 9,47,010 81,92,485 (Up to August 09) Total 19,01,48,018 4,95,44,302 23,96,92,320 Less :Paid on 30-03-09 2,18,17,865 Balance Rs. 21,78,74,455 6. Therefore, the Deputy Commissioner, i.e., assessment officer, had issued a notice to the petitioner to repay the unauthorised availment of deferral to an extent of Rs. 21.79 crores. As seen from the table above, the petitioner in order to show their volume have included the Central sales tax within its turnover. The turnover indicated will not include the consignment sale, branch transfer and export sales effected by the petitioner-company during the assessment year for availment of deferral in question. If these included figures are excluded, the result of BSV will be les ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les coming under TNGST as well as branch sales, transfers, inter-State sales, exports, etc. For the purpose of availing of concessions under the EC, the BPV and the sales made in excess of the BSV under the Tamil Nadu General Sales Tax Act should be taken into account, as the purpose is to protect the past revenue of the Government prior to expansion/diversification scheme." 10. In the light of this, the respondents took the stand that the petitionercompany is not entitled to avail of IFST deferral as it had not maintained BPV in excess of BSV. Though the petitioner tried to contend that they have diversification of products, it was the stand of the respondents that there was no interconnection between the existing unit and the diversification unit. The eligibility certificate was obtained by them under the expansion/diversification scheme. The manufacturing of epichlorohydrin is a new industry was not correct. 11. The petitioner is challenging the communication, dated October 20, 2009 faced with a demand for making payment of deferral so far availed of by them in violation of law and they were threatened with action to recover the entire amount of TNGST without further notice an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficate which initially gave them power to enter into an agreement with CTRE Department. When the scheme is intended for providing incentive to set up industries in backward areas with a view to maximise the production so as to increase the infrastructures of the area as well as provide employment opportunities, the petitioner by including the branch transfer and sales as a part of the BSV are trying to hoodwink the Department. 15. In this context, the learned Government Advocate relied upon a judgment of the Allahabad High Court in Ambika Steels Pvt. Ltd. v. State of Uttar Pradesh reported in [2008] 12 VST 390 (All) for the purpose of contending that if the notifications on a simple and plain reading are quite clear, unambiguous and do not admit of any doubt, the strict interpretation with regard to the interpretation of statutes is clearly attracted. In the said judgment, it was observed as follows (page 405 in 12 VST): "We, therefore, in nutshell do not agree with the contention of the petitioner that 'turnover of sales' used in the notification does include stock transfer and transfer of goods from one branch to another. . ." In the same case, the Allahabad High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his definition of the words 'gross turnover' to say that it would include export sales, particularly, when rule 28A contains a proviso to the effect that in case of exemption, the benefit shall extend to tax on 'gross turnover'. There is no dispute on this proposition. 24. However, in this case we are concerned with the 'limit' to be placed on tax exemption/deferment and for calculating that limit/ ceiling one has to take into account the notional sales tax liability of the unit. Therefore, one has to read the proviso in rule 28A(4) with Explanation 1 which states that 'for the purposes of arriving at the limit of tax exemption/deferment, the notional sales tax liability of the unit shall be taken into consideration'. It is because of the said Explanation that 'notional sales tax liability' has been defined in rule 28A(2)(n). Therefore, one has to go strictly by the definition of the words 'notional sales tax liability' in the said rule 28A(2)(n) of the 1975 Rules. 28. For the aforestated reasons, we hold that export sales were not includible in the matter of calculation of 'notional sales tax liability' during the period in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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