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2016 (4) TMI 785 - PATNA HIGH COURT

2016 (4) TMI 785 - PATNA HIGH COURT - 2016 (336) E.L.T. 220 (Pat.) - Tax liability - Section 16 of the Bihar Finance Act, 1981 - Ex-parte order passed - Sale of confiscated goods imported in contravention of Customs laws - Petitioner neither filed return nor produced books of accounts as required under Section 16(1) and 17(2) ibid in spite of notice - Held that:- in view of various Hon'ble Supreme Court judgments, the petitioner is a dealer within the meaning of Section 2(e) of the Bihar Finance .....

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nd interest. - Petition disposed of - Civil Writ Jurisdiction Case No. 7606, 7671, 7703 , 7712, 7779, 7782, 7854, 7859, 7884, 7941, 7992, 7999, 8018, 8041, 8970 of 2007 - Dated:- 11-3-2016 - Hemant Gupta And Ramesh Kumar Datta, JJ. For the Appellant : Mrs. Archana Meenakshee, Adv. & Mr. Kumar Pankaj, Adv For the Respondent : Mr. Vikash Kumar, AC to PAAG JUDGMENT ( Per: Honourable Mr. Justice Hemant Gupta ) This judgment shall dispose of all these 15 writ petitions filed by the Customs Depart .....

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eafter, the interested persons participate in tender process and highest bidder of confiscated goods are required to deposit the bid money along with sales tax in concerned treasury and on production of treasury receipt, the goods are released by the Assistant Commissioner Customs (P), Muzaffarpur. 3. The grievance of the petitioner is that by virtue of an ex-parte order the petitioner was saddled with the tax liability. The stand of the petitioner is that it is not liable for payment of sales t .....

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quired to furnish return and deposit tax as per Section 16 of the Bihar Finance Act, 1981. The petitioner is also required to produce books of accounts relating to its transactions and get assessed under section 17 of the Act. The petitioner neither filed return nor produced books of accounts as required under section 16(1) and 17(2) of the Bihar Finance Act, 1981 in spite of notice. Thereafter an ex parte order was passed. Thus, it was asserted that action against the petitioner is in accordanc .....

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otherwise provide, be exempt from all taxes imposed by a State or by any authority within a State (2) Nothing in clause (1) shall, until Parliament by law otherwise provides, prevent any authority within a State from levying any tax on any property of the Union to which such property was immediately before the commencement of this Constitution liable or treated as liable, so long as that tax continues to be levied in that State." 7. The Article 285 of the Constitution of India bars the Sta .....

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stitution of India again were examined by the Hon'ble Supreme Court in the case of New Delhi Municipal Council Vs. State of Punjab, (1997) 7 SCC 399. 9. The majority opinion in the Supreme Court in Sea Customs case (supra) held that the bar of Article 289 of the Constitution of India does not apply to indirect tax like customs duty, Central excise duty, sales tax etc. 10. In a later judgment, in the case of New Delhi Municipal Council (supra), the Hon'ble Supreme Court held that Article .....

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s and another v. State of W.B. and another, (1999) 1 Supreme Court Cases 192 examined the identical issue as raised in the present cases where the Collector of Customs was found to be a "dealer" within the meaning of the Bengal Finance (Sales Tax) Act, 1941 after the customs sold goods confiscated under the provisions of the Customs Act, 1962 because of non-payment of custom duty thereon. The Court held to the following effect: "4. It would appear that no real arguments were advan .....

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he taxable event is the act of sale. Therefore, though both excise duty and sales tax are levied with reference to goods, the two are very different imposts; in one case the imposition is on the act of manufacture or production while in the other it is on the act of sale. In neither case therefore can it be said that the excise duty or sales tax is a tax directly on the goods for in that event they will really become the same tax." 5. The decision in the Sea Customs Act case was considered .....

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counsel for the parties and having perused the judgment of the High Court and the relevant clause in the agreement between the appellant and its contractors concerned we are satisfied that the question involved in these appeals are no more res-integra. This Court as far back as in the year 1963 in a presidential reference case under Sea Clustoms Act held; "The bar of Article 289 of the Constitution of India does not apply to indirect tax like Customs duty, Central Excise duty, Sales Tax et .....

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