TMI Blog2015 (12) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... icity to the sister concern, which according to the appellant amounts to a breach of Form No.26 or 40 on the part of the assessee. From the findings recorded by the Tribunal as well as from the facts as appearing from the record, it is evident that the entire material which was purchased against Form No.26 or 40, namely, naptha, was used by the assessee for generating electricity through the gas turbine and such electricity was used solely for the purpose of manufacture in its own unit. Wheeling out of a minuscule amount of electricity generated out of the steam turbine, to its sister concern cannot in any manner be said to be a breach of Form No.26 or 40 as is sought to be contended by the appellant. It is also not the case of the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plant operated from steam? [2] Whether the Hon ble Tribunal has erred in holding that the Naptha purchased by the respondent is used by the respondent only and accordingly the respondent has not breached any condition of entry no.69 or 255 of notification issued under section 49(2) of the Sales Tax Act? [3] Whether the Hon ble Tribunal has erred in holding that Naptha was not taxable goods and so purchase tax cannot be levied under section 15B of the Sales Tax Act? [4] Whether the Hon ble Tribunal has erred in deleting levy of interest u/s 47(4A) and penalty u/s 45(6) of the Sales Tax Act? 3 The facts stated briefly are that pursuant to the Sales Tax Incentive Schemes declared by the Government of Gujarat to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the following facts: 4.1 The assessee had established a captive power plant, running on gas turbine in the year 1999-2000 and naptha was used to operate the said plaint. The naptha, which was used, was purchased by the assessee by issuing Form No.26 or 40. During the process of power generation, certain amount of steam was produced, which was released in the air. With a view to utilise such steam, the assessee installed another power plant, which was run on steam turbine. Till such steam operated power plant was established, the steam generated by the naptha plant was released into air as a waste product. Thus, the assessee was producing electricity from two plants: (i) the power plant run on naptha, that is, gas turbine, and (ii) t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee. The assessee contended that both the purchase taxes under sections 50 and 15B were wrongly and illegally imposed and it was not liable to pay any such taxes. The Tribunal, after appreciating the evidence on record, recorded a finding of fact to the effect that the only raw or processing material, which was purchased against Form No.26 or 40, namely, naptha was to be used by the assessee itself. The dispute involved in the present case is about purchase of naptha and its use in the manufacture. According to the Tribunal, when the assessee had used the entire naptha in the gas turbine for its purpose, there was no question of any breach having been committed by the assessee. The Tribunal was of the view that the wheeling of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntial question of laws as proposed or as may be formulated by the court. 6 On the other hand, Mr Parth Contractor, learned advocate for M/s Singhi Company, learned advocates for the respondent supported the impugned order by submitting that the Tribunal, after considering the evidence on record, has recorded findings of fact to the effect that the naptha which was purchased by issuing form No.26/40 had been wholly used for generating electrity and no part thereof was used for generating the electricity wheeled out to the sister concern. Under the circumstances, there is no breach of Form No.26 or 40 on the part of the assessee. It was submitted that the conclusions arrived at by the Tribunal are based upon the findings of fact recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to the sister concern was generated by the steam turbine which was run on the steam which emerged as a waste product when using naptha for the purpose of generating electricity through gas turbine. Therefore, on facts, it cannot be said that any material purchased by the assessee by issuing Form No.26 or 40 has been used by the assessee for any other purpose than for manufacturing in its own unit. In the opinion of this court, the wheeling out of a minuscule amount of electricity generated out of the steam turbine, to its sister concern cannot in any manner be said to be a breach of Form No.26 or 40 as is sought to be contended by the appellant. It is also not the case of the appellant that any part of the naptha had been used solely for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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