9911796707
TMI Blog2017 (6) TMI 305X X X X Extracts X X X X X X X X Extracts X X X X ..... the opponent, out of these products, the opponent is not selling HDPE yarn. It is the contention of the opponent that the Yarn is used in the manufacture of HDPE cloth which is neither laminated nor processed. The third product is filament product. The opponent is manufacturing only "Brushes" of the HDPE yarn. (b) The opponent entertained a doubt as to the levy of taxes on "cloth" manufactured out of HDPE yarn with aid of looms. The opponent claims that the cloth manufactured out of DHPE yarn being a manmade fabric is exempted from levy of sales tax being described in the Column 3 of First Schedule to the Additional Duties of Excise (Goods of Special Importance) Act, 1958. (c) In order to get the doubt settled from the determining authority, the opponent filed an application on 3rd June, 1997 under Section 52 of the Bombay Act by posing the following question: "Whether the sales of 48" width 72 mesh woven cloth and sales of 48" width 40 mesh woven cloth, as indicted under sale Bills No.97190 dated 8th December, 1996 and under Bill No.97186 dated 27th November, 1996, respectively are taxable under any entry under the Bombay Sales Tax Act, 1959, and if taxable, the rate of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 30th April, 2003 set aside the determination order passed by the Commissioner of Sales Tax to the extent it holds the product to be covered under Entry 17 of the Schedule C PartI. It is held that HDPE cloth is covered under Entry 15 of Schedule A except for the period from 1st October, 1996 to 30th April, 1998. The opponent was also granted prospective benefit for limited period from 1st October, 1996 to 30th April, 1998. (h) The revenue was not satisfied with the order dated 30th April, 2003 and preferred an application under Section 61(1) of the Bombay Sales Tax Act requesting the Tribunal to refer certain question of law to the High Court for its decision. The Tribunal has made this Reference vide order dated 11th August, 2006. 3. The Revenue vide its Reference Application No.76 of 2003 had requested the Tribunal to refer certain question of law to this Court for its decision which are as follows: "(i) Whether on the facts and the circumstances of the case, was the Tribunal justified in holding that the impugned product i.e. Filter fabrics is covered by Schedule entry A15 except for the period from 1st October, 1996 to 30th April, 1998? (ii) Whether o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar subsection, the Appeal cannot be said to be available against the non order. Whether there can be two separate orders, one for the determination and the other of the prospective effect or a single order covering both the aspects is a question of law. According to the Revenue, giving a prospective effect has revenue implications and, therefore, it is the sole discretion of the revenue. The revenue has to forego the amount when assessee has no right to claim prospective effect. In the instant case, the Tribunal has decided that the sale transaction is liable to tax and is covered by the Schedule Entry CI17 liable to tax at 4%. The issue of giving prospective effect to the determination is the discretion of the Revenue. There is nowhere in the Act a right to have a prospective effect conferred on the assessee as of right by resorting to appeal proceedings. This power is given under the Act to the Commissioner. (d) It was further urged that in view of the aforesaid submissions, it was a case for reference on the questions raised by the revenue. The questions can be answered in either way. The answer to such questions is not available in any judgments of the Apex Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n be said to be distinct from the use that in common parlance is attached to fabrics. The controversy as to the classification of the product itself is debatable and it is certainly a substantial question of law and therefore, the question nos.(i) and (ii) in that behalf are required to be referred to the High Court for consideration. 7. The Tribunal further observed that the other grievance of the revenue is that the question posed in the determination proceedings was in relation to a transaction of sale on a particular date and the Tribunal was called upon to decide the question on the basis of the law applicable on the particular date. The appellate authority cannot decide the Appeal in relation to the transaction taken place on any other date. This question raised is to jurisdiction and competency of the Tribunal to determine the classification of the product in the context of particular period or rather say beyond the period of disputed transaction. The said question would not arise in the present case because the Commissioner himself has clarified the legal position in respect of the product for the period prior to 1st October, 1996 and after 1st October, 1996 (i.e. for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terprises. However, the facts of the present case and the said case stand on different footing. In the case of M/s. Ashish Enterprises (Supra), the determination order as passed on 8th September, 1993, which application for giving prospective effect was filed on 9th January, 1998 i.e. about 4 years and 8 months after the passing of determination order and, hence, it was observed that it is difficult to hold that the dealer can file such application any time after the determination order i.e. without having any time limit. It is further observed that in such an event, it may not be erroneous to hold that prayer for giving prospective effect has got to be made along with the application for determination itself and separate application for such prospective effect may not be maintainable. In the light of the said observations, the power of the Tribunal to grant prospective effect in subsequent application was referred to the High Court which is not the case of the present proceedings. It is observed that in the present proceedings the relief for grant of prospective effect has been sought simultaneously while application for determination order was filed and, therefore, the ratio of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said prayer and in adjudicating upon that prayer in exercise of the appellate powers under Section 55 of the Bombay Act? 15. Section 61 of the Bombay Sales Tax Act relates to statement of case to the High Court. As per the said provisions, within ninety days from the date of the communication of the order of the Tribunal, passed in Appeal being an order which affects the liability of any person to pay tax or penalty or interest or to forfeiture or any sum or which affects the recovery from any person of any amount under Section 39, that person, (the Additional Commissioner of Sales Tax having jurisdiction over the whole of the State or the Commissioner), may by application in writing (accompanied, where the application is made by that person, by a fee of One Hundred rupees) require the Tribunal to refer to the High Court any question of law arising out of such order and where the Tribunal agrees, the Tribunal shall as soon as may be after the receipt of such application, draw a statement of the case and refer it to the High Court. It is implicit that a reference can be made to the High Court with regard to any question of law arising out of such order. The law is very clear on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lves the question of law, enumerated in reference order. He advanced the submissions which were raised by Deputy Commissioner of Sales Tax Legal representing the applicant before the Tribunal. Ms. Badheka, the learned advocate representing the respondent/opponent also reiterated the submissions advanced by her before the Tribunal and submitted that, this reference is unwarranted and no question of law is involved in the proceedings. 17. The first question of law referred to by the Tribunal is whether on the facts and circumstances of the case, was the Tribunal justified in holding that the impugned product i.e. filter fabrics is covered by Schedule entry A15 except for the period from 1st October, 1996 to 30th April, 1998? In the reference order dated 11th August, 2006 there is no observation as to why such a question is required to be referred to this Court and for the reasons best known to the Tribunal the said question has been framed for reference to this Court. The Tribunal in the order dated 30th April, 2003 has dealt with such issue in detail from paragraph 22 onwards. In paragraph 22, the Tribunal has observed that the question since arose whether the product HDPE wov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decisions including the opinion of an expert tendered by the original appellant and the Tribunal has opined that it is not possible to accept the contentions of the Commissioner of Sales Tax that the impugned product is not obtained by either of the two processes referred to therein and that therefore cannot be considered as material described in heading 54.05 and, therefore, not covered by Central Excise Tariff Head 54.04. It was further observed that the Tribunal finds good deal of substance in the contention made on behalf of the appellant that the impugned product HDPE woven cloth fulfilled the necessary conditions of heading 54.04 and, therefore, covered by the Central Excise Tariff heading 54.06. The Tribunal had also considered the opinion of expert which was relied upon by the opponent. The reference is apparently silent as to why said issue is considered as a question of law. 19. The third question as to whether the Tribunal was justified in holding that the Commissioner has rejected the prayer and has adjudicated upon that prayer in exercise of the appellate powers, under Section 55 of the Bombay Act. We fail to understand as to how the Tribunal has referred to the said ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
