TMI Blog2019 (6) TMI 1311X X X X Extracts X X X X X X X X Extracts X X X X ..... in challenge before the Tribunal, a prima facie view of the strength of the case before it is considered. Therefore, where the issue is concluded by a decision of the superior forum or on decision of the authority hearing the stay application, then it would be a factor warranting a stay. In the present facts, we note that the submission of the Petitioner were duly considered and a prima facie view was taken after consideration of facts and the prevailing law. The challenge to the impugned order before us by the Petitioner is entitlement of lower tax on bunker fuel in view of Schedule 'C' to the Act. This on the ground that the bunker fuel is supplied to foreign going vessels. We note this submission was considered by the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve Economic Zone. These bunker fuel is supplied by the Petitioner as ship stores. The sale of the bunker oil is evidenced by the invoices issued to the shipping line owning the vessels. 3. During search operation, on17th December, 2014 by the investigation wing of the Respondent, it was found that the dealer was availing of Notification No. 1506 dated 30th November, 2006. The investigation officer was of the view that the Petitioner is not entitled to the benefit of the above Notification. This led the Petitioner to file a revised return for the period 2011-12. The Assistant Commissioner of Sales Tax, by order dated 28th March, 2016 held that sale of bunker fuel sold to vessels, attracts tax under the MVAT Act. It held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to ship in the territorial waters of India as it is beyond the territorial limits of the State; (ii) the retail sale of petroleum products is not taxable and the bunker fuel supplied by them to vessels is in the nature of retail sales; and (iii) the benefit of lower rate of taxes in respect of bunker oil supplied to foreign going vessels in terms of Schedule C to the said Act. 7. The impugned order of the Tribunal on a prima facie view found issue-wise as under: (i) above is concerned, it stands concluded against the Petitioner by the decision of this Court in Raj Shipping v/s. State of Maharashtra (Writ Petition No. 4552 of 2015) decided on 19th October, 2015; (ii) above is concerned, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ' came up for consideration before the Hon'ble the Supreme Court in a customs matter i.e. in U.O.I. v/s. V. M. Salgaoncar Bros (P) Ltd., 1998 (4) SCC 263 , where it has been held that foreign gong vessel means a vessel capable of going abroad and its dominant use does not determine its true nature. Therefore, on this issue alone, the stay as pleaded must be granted or the matter be remanded for fresh consideration to the Tribunal on the above issue. 9. The grievance of the Petitioner before us is that the issue arising before the Tribunal was a pure question of law, thus the order passed by the lower authority ought to have been stayed on a deposit of 10% as offered by the Petitioner. In the alternative, it is prayed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s submission was considered by the Tribunal and rejected at the prima faice stage, as the Petitioner had conceded the position that the bunker fuels are supplied to vessels which are not foreign going vessels. Thus, in view of the above, no fault can be found with the prima facie view taken by the Tribunal. Mr. Sridharan, learned Sr. Counsel in support of the Petition seeks to submit that the meaning of the word 'Foreign Going Vessel' stands concluded by the Apex Court in V. M. Salgaoncar Bros (supra) where it held that the Foreign Going Vessel need not itself go abroad but should be capable of going abroad. However, we note that the above decision was given in the context of the Customs Act, 1962 and not the said Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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