TMI Blog2015 (3) TMI 475X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on the Commissioner's clarification, we do not find any justifiable ground to accept the plea of the Revenue that the facts of the case calls for imposition of penalty. Hence, applying the ratio of the decision reported in [2001 (9) TMI 1101 - MADRAS HIGH COURT] (Appollo Saline Pharmaceuticals (P) Limited v. Deputy Commercial Tax Officer) and taking note of the decision reported in [2004 (9) TMI 617 - MADRAS HIGH COURT] (Mohan Breweries and Distilleries Limited v. Commercial Tax Officer, Porur Assess ment Circle, Chennai), we have no hesitation in accepting the plea of the assessee; consequently, penalty levied on the turnover relating to section 7A Since reported in Mohan Breweries and Distilleries Ltd. v. State of Tamil Nadu [2014 (1) TMI 99 - MADRAS HIGH COURT]. stands deleted. Thus, the question raised in T.C. (R) Nos. 1669, 1857, 1667 of 2008 and 13 of 2009 on the levy of penalty on purchase tax stands cancelled. As far as the penalty levied on account of the non-inclusion of excise duty in the turnover is concerned, we again accept the argument of the learned senior counsel appearing for the assessee that till the decision was rendered by this court in [1989 (4) TMI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned senior counsel appearing for the assessee pointed out that as far as levy of vend fee payable by the wholesale seller, which was included in the turnover of the assessee is concerned, the same is covered in favour of the assessee by the decision of this court in T.C. (R) Nos. 637 of 2006, etc., batch dated September 19, 2013 (Mohan Breweries and Distilleries Ltd. v. State of Tamil Nadu [2014] 67 VST 102 (Mad)) in the assessee's own case ; consequently, the question of levy of sales tax on the vend fee paid by the wholesalers under the Tamil Nadu Indian Made Foreign Spirits (Supply by Wholesale) Rules, 1981 does not arise. As far as the levy of purchase tax under section 7A on purchase of empty bottles is concerned, learned senior counsel pointed out that considering the decision of this court reported in [2005] 139 STC 477 (Mad) (Mohan Breweries and Distilleries Limited v. Commercial Tax Officer, Porur Assessment Circle, Chennai), the issue has to be answered against the assessee and hence, the turnover on the purchase of empty bottles from unregistered dealers has to be assessed under section 7A of the Tamil Nadu General Sales Tax Act. This leaves us with only on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by reason of the correspondences between the Chairman of the Tasmac and the further deliberations between the Prohibition and Excise Department and the assessee entertaining the impression that the Tasmac being the authority to meet the liability on payment of excise duty, and hence there was a bona fide dispute as to the inclusion of excise duty in the turnover of the assessee. In the background of this, when a dispute was raised before this court, the same was settled only on April 25, 1989 holding that the excise duty paid by the wholesaler at the time of purchase from manufacturer formed part of the price paid for the goods, hence, includible in the turnover of the manufacturer. Thus, the clear picture emerged only on the decision of this court dated April 25, 1989. Hence, the question of alleging that the asses see lacked bona fides in its claim on excluding the excise duty payable from the turnover did not arise. In other words, learned senior counsel submit ted that the assessee was all the time under the bona fide belief that excise duty paid by the wholesaler was not includible in the turnover; consequently, on this ground, there was no conscious misstatement warranting l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned senior counsel appearing for the assessee, as far as the vend fee inclusion in the turnover is concerned, the same is governed by the unreported decision of this court dated September 19, 013 in T.C. (R) No. 637 of 20061, etc., batch and hence the first question raised in T.C. (R) No. 1669 of 2008 stands answered in favour of the assessee; consequently, question Nos. 2 and 3, namely, levy of penalty under section 12(3) and under section 12(5)(iii) of the Tamil Nadu General Sales Tax Act does not arise. This is also the position as regards T.C. (R) Nos. 1857 of 2008 and 13 of 2009 on the sustainability of vend fee. In the light of the decision we have taken in T.C. (R) No. 1669 of 2008 following the decision dated September 19, 2013 in T.C. (R) No. 637 of 2006 (Mohan Breweries and Distilleries Ltd. v. State of Tamil Nadu [2014] 67 VST 102 (Mad)), the question of levy of penalty on vend fee does not arise; consequently, penalty stands deleted. As regards the liability under section 7A, which is a subject-matter in all the four tax cases, as fairly submitted by the learned senior counsel appear ing for the assessee, the same has to be answered against the assessee by f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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