TMI Blog2017 (8) TMI 676X X X X Extracts X X X X X X X X Extracts X X X X ..... nefit of the provision, it would have to be shown that the amount representing the sales value of goods brought from outside the State of U.P. was for the works contract - The assessee appears to have proceeded on the premise that as for the previous years, in similar circumstances, the import of goods for works contract was accepted by the department, as such, the facts need not be established all over again. An opportunity to establish such facts ought to have been given more specifically, if the department intended to take a view different from the previous years. In the opinion of this Court, the Tribunal ought to have given an opportunity if assessee's case was being non-suited on facts - The Tribunal shall examine that aspect of the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been dismissed. The orders passed by Assessing Authority, as affirmed in first appeal have been maintained. The revision has been filed on the following questions:- 1. Whether the goods brought from outside the State of U.P. and used in the execution of works contract can be subjected to tax despite the fact that the turnover pertaining to the works contract is exempted from payment of tax in view of Section 3-F(2)(b) of the Act read with Section 3 of the Central Sales Tax Act, 1956. 2. Whether the learned Tribunal was justified in levying tax on road marking plastic powder used in the marking of central line on the National Highways/Roads as Paint being an unclassified items, since it is a pigment and used in the execution off w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed earlier, so as to co-relate it with its actual use in the works contract itself. This order has been maintained in first appeal and also by the Tribunal in second appeal. The Tribunal while rejecting the second appeal has recorded a finding that the assessee has not been able to demonstrate that glass beads, thermo plastic, chemical compound etc. were used for the works contract, and that such materials are to be treated as an unclassified materials, in case it is not treated as paint. The specific objection of the assessee that in respect of proceedings undertaken for previous years, such materials were treated to have been brought in for works contract, and therefore not liable to be taxed, has however not been accepted. Aggrieved by s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the purposes of determining the net turnover referred to in sub-section (1), the following amounts shall be deducted from the total amount received or receivable by a dealer in respect of a- (a) ..... (b) transfer referred to in clause (b) of sub-section (1),- (i) the amount representing the Sales Value of the goods covered by Sections 3, 4 and 5 of the Central Sales Tax Act, 1956; 6. Section 3-F(2)(b) clearly exempts from the applicability of trade tax the amount representing sales value of goods covered by Section 3, 4 and 5 of the Central Sales Tax Act, 1956. In order to enable the revisionist to claim benefit of the provision, it would have to be shown that the amount representing the sales value of goods brought f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ument had been filed, and no other material had been placed. This Court would not like to delve further on this aspect of the matter, inasmuch as filing of the written argument by the assessee before the Tribunal is recorded in the order of the Tribunal itself. This Court finds that issue on the first count i.e. use of goods for performance of works contract does not appear to have been seriously questioned by the authorities either. In the opinion of the Court, such issues could have been examined more appropriately by the Tribunal, and a finding in that regard ought to have been returned, based upon materials placed on record. The assessee appears to have proceeded on the premise that as for the previous years, in similar circumstances, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal. Tribunal, therefore, was required to return a finding as to whether the material utilized for the contract was paint or thermo plastic road marking material. The Tribunal appears to have lost sight of the fact that assessing authority had acknowledged the product as thermo plastic road marking material. The observation of the Tribunal otherwise seems contradictory, inasmuch as use of material for the purpose of laying lines is not questioned, yet it is held to be paint. 10. Since no specific finding in that regard has been returned by the Tribunal, the order of Tribunal for such reasons would not meet the requirement of law. The records, accordingly, shall be placed before the Tribunal for proceeding afresh, in accordance with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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