TMI Blog2015 (10) TMI 213X X X X Extracts X X X X X X X X Extracts X X X X ..... ace of business or his agent outside the State. He would be able to obtain the reliefs in terms of sub rule (1), provided certificate in "form 31C" is produced. - Admittedly, that certificate was produced and it contains the relevant particulars. Tribunal had before it the material that the branches of the claimant dealer were registered under the local Act as well as the Central Sales Tax Act, qua those States. The definition of "sale" in those States includes a "works contract" as defined in the law in force in those States. In such circumstances, the 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. - Sales Tax Reference No. 14 of 2003, Reference Application No. 16 of 1997 - - - Dated:- 5-8-2014 - S. C. DHARMADHIKARI AND B. P. COLABAWALLA, JJ. V. A. Sonpal, Special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les of such manufactured goods consists principally of sales of waste or scrap goods, then the claimant dealer shall not be entitled to any drawback, set-off or as the case may be, a refund under this rule: Provided further that where such manufacture 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 dealer, in respect of purchases of goods, which are used by him in the manufacture of goods, treated as capital assets by him or parts and components of such capital assets: Provided also that, the clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as well as those local Acts included works contract. Reliance was placed on a circular issued by the Commissioner of Sales Tax, Maharashtra State dated July 17, 1987. 6. The Tribunal, going by the plain language of the rule, namely, 41D(1) and the definition of export as appearing in sub-rule (2) thereof, so also the circular, held that the Assistant Commissioner was in error in disallow ing the set-off under this rule. 7. Mr. Sonpal, therefore, submits that the Tribunal erred in allowing the assessee's appeal and granting the relief though it was aware that the clarification which has been given by the circular cannot go contrary to the rule itself. The substantive provision enables the assessee to obtain the set-off only after he satisfies the pre-condition, namely, of not just producing the certificate, but the contents of the certificate can be verified by the Revenue. In this case, the contents of the certificate have been verified and they reveal that though the manager/agent of the place of the business of the assessee in the State of Andhra Pradesh and Uttar Pradesh stated that the goods will be sold or the goods which have been despatched by the assesse will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 manager or as the case may be, his agent who declared, interalia, that the goods will be in fact sold by him or will be used by him in the manufacture of goods which will be in fact sold by him and that there is a registration in their favour under the Bombay Sales Tax Act, 1959 in respect of that place of business. Undisputedly, such certificate was produced. Once such a certificate was produced and export is defined inclusively to mean a despatch as above, then, any larger controversy or wider question should not have been gone into and decided by the Tribunal at all. The reference to the circular was wholly unnece ..... X X X X Extracts X X X X X X X X Extracts X X X X
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