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TMI Blog2015 (10) TMI 213X X X X Extracts X X X X X X X X Extracts X X X X ..... d as under: "(a) Whether, on the facts and in the circumstances of the case, and on the true and correct interpretation of rule 41D(2)(iii) of the Bombay Sales Tax Rules, 1959, the Tribunal was justified in allowing the set-off under rule 41D when the manufactured goods were used in works contract in other States, and were not sold in those States as contemplated by section 2(28) of the Bombay Sales Tax Act, 1959 ? (b) Whether, on the facts and in the circumstances of the case and on the true and correct interpretation of rule 41D(2) (iii) of the Bombay Sales Tax Rules, 1959, the Tribunal was justified in law in holding that the manufactured goods used in works contract in other States were in fact 'sold' as required by the said r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufacture results in the production of goods other than taxable goods, then such drawback, set-off, or as the case may be, the refund, shall not be granted on purchase of goods including capital assets effected prior to the April 1, 1998 also in respect of capital assets on which depreciation has been earlier claimed by any other person or dealer and which have been purchased by the claimant dealer on or after the April 1, 1998: Provided also that, the claimant dealer shall not be entitled to claim any drawback, set-off or refund in respect of purchases of molasses and rectified spirit used by him in the manufacture of country-liquor and Indian-made foreign liquor: Provided also that, set-off under this rule shall not be granted to a deale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the case may be, his agent is registered under the Central Sales Tax Act, 1956 (LXXIV of 1956) in respect of that place of business. (3) . . ." 4. The issue raised was that the set-off has been disallowed on various counts but we are concerned with only ground of disallowance, namely, that the goods were to be used in works contract. 5. The assessee pointed out before the first appellate authority as also the Tribunal that disentitlement to set off comes from the fact that the set off is claimed because the goods have been despatched from the dealer's place of business to its branches in the State of Andhra Pradesh and Uttar Pradesh. Those branches have sold the goods which are used in execution of the works contract in which the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espatched by the assesse will be used in manufacturing of goods which in fact are going to be sold, what has transpired is that these goods have been utilized in execution of works contract by these branches. Therefore, the dealer before us is not entitled to rely on the said provisions, namely, rule 41D appearing in the Bombay Sales Tax Rules, 1959 and claim a set-off. 8. The assessee's advocate, on the other hand, supported the reasoning of the Tribunal and urged that any factual matter cannot be raised in this limited jurisdiction and we are required to proceed on the footing that the Tribunal noted the necessary facts dealing with the assessee's appeal and decided to refer the questions of law for the purpose of opinion of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in respect of purchases made by the claimant dealer on or after the notified day, of any goods specified in entry 6 of Schedule B and in Schedule C and used by it within the State. Firstly, in the manufacture of goods which are specified in clauses (i) and (ii) of sub-rule (1) of rule 41D, grant to the claimant dealer subject to the reduction specified in sub-rule (3), a drawback, set-off, or as the case may be, a refund of the aggregate of the sums determined in accordance with the provisions of rule 44D. 10. The expression "export" includes despatches made by the claimant/dealer to his own place of business or to his agent outside the State where the claimant/dealer produces certificate in "form 31C". This certificate is issued by his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal was right in the conclusion it reached. We are of the opinion that the questions have been rightly decided. In the circumstances, the reference at the instance of the Revenue ought not to have been made to this court but having been made and we are called upon to decide, that we conclude that the Tribunal correctly read rule 41D and granted relief thereunder. The reference is, therefore, answered against the Revenue and in favour of the assessee. 11. We clarify that any larger controversy and particularly with regard to the applicability of any works contract Act prevailing in the other States and that having any bearing on the definition of term "sale" as appearing in BST Act need be gone into and decided. It can be so decided ..... X X X X Extracts X X X X X X X X Extracts X X X X
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