TMI Blog2015 (2) TMI 1119X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority and a decision has been rendered on the merits of the case. It is therefore for the petitioner to pursue the next form by way of appeal as provided in the statute. We, therefore, find no reason to entertain this Writ Petition under Article 226 of the Constitution of India, more so, there is an effective and alternative remedy. - Petition dismissed as not maintainable - Decided against the assessee. - Writ Petition Nos.2455 and 2456 of 2015 & M.P.Nos.1 and 2 of 2015 - - - Dated:- 12-2-2015 - MR. JUSTICE R.SUDHAKAR AND MR.JUSTICE R.KARUPPIAH For the Petitioner : Mr. V. Sundareswaran For the Respondent : Mr. Kanmani Annamalai, Spl. G.P.(T) COMMON ORDER (Order of the Court was made by R.SUDHAKAR,J.) The peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acture of Blue metal and pay taxes. Based on this they made the sale under Sec.2(11) and charged tax @4%. Hence they requested to drop the proposal of revision. The objections filed by the dealer have been perused carefully. The dealer had stated that they had effected sales only after receiving the letter from IVRCL regarding the eligibility of tax @ 4%. There is no provision under the TNVAT Act 06 to effect sales @ 4% after receiving letter from their buyers. The machinery sold by the dealer is a crusher which is used for crushing blue metals. Sec.2(11) defines the capital goods for producing, making extracting or processing of any goods or for bringing about any change in any substance for the manufacture of final products. Crushi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der section 22(2) of the Act and none of the material/details/data if any, gathered in this regard was furnished/provided to the appellants to enable them to effectively defend their position. 5. The Assessing Officer ought not to have levied 12.5% in respect of sale of capital goods . 6. The Assessing Officer has not stated any of the specific provisions of the Act or the Rules made there under for the levy of tax at 12.5% for the sale of capital goods. 7. Without any explicit restriction of input tax credit by any specific provisions, the claim made by the Assessing Officer that the goods are taxable at 12.5% is illegal and improper. 8. The goods purchased by the appellants were used as capital goods and spares of capital goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto smaller stones of varying sizes does not involve manufacturing process. For better clarity, we extract the order of the Appellate Authority as under: Section 2(27) manufacture with its grammatical variation and cognate expression means producing, making, extracting, altering, ornamenting, finishing, assembling or otherwise processing, treating or adapting any goods and includes any process of goods which brings into existence a commercially different and distinct commodity but does not include any activity as may be notified by the Government. It is settled principles of law that the general prevalent test is whether the article produced is regarded in the trade, by those who deal in it, as distinct in identity from the commodi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 58 of the Act. 6. It is seen that without pursuing the appeal remedy and to avoid the condition of pre-deposit of entire amount as required by the Statute, the petitioner has filed W.P.No.2455 of 2015 challenging the order of the first Appellate Authority. As an offshoot and to buttress the merits of the case, another Writ Petition in W.P.No.2456 of 2015 has been filed by the petitioner to declare Section 58(1) of the Act as ultravires of Article 14 read with Article 19(1)(g) and 265 of the Constitution of India. 7. Learned counsel appearing for the petitioner relied upon various decisions, viz., the decision of Madhya Pradesh High Court reported in 79 STC 149, the decision of Division Bench of the Madras High Court dated 25. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be noted that it was not the case of the petitioner that there is violation of principles of natural justice or arbitrariness in the proceedings. The issue raised by the petitioner is a question of fact. It has to be finally decided by the Tribunal and the statute provides for the same. Whatever point that has been addressed by the petitioner before the Original Authority and First Appellate Authority, has been considered by the Authority and a decision has been rendered on the merits of the case. It is therefore for the petitioner to pursue the next form by way of appeal as provided in the statute. We, therefore, find no reason to entertain this Writ Petition under Article 226 of the Constitution of India, more so, there is an effective ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
