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2019 (10) TMI 363

..... al of concessional rate on the ground that no Register of Declarations maintained in the prescribed manner, has been filed in support of the petitioners’ claim - TNGST Act - principles of natural justice. HELD THAT:- Section 3(3) of the TNGST Act stipulates only two conditions. The first, in regard to the nature of the goods, meaning thereby, that the benefit is available in respect of sale of ‘any goods including consumables, packing material and labels’ but excluding capital goods such as plant and machinery, and secondly the use of the goods in manufacture, assembling, packing or labelling of any goods other than alcohol and spirits. Admittedly these two conditions are satisfied in the present case and there is no dispute raised by the Revenue in this regard. The proviso restricts such benefit to the sale of specified commodities, that is, High Speed Diesel Oil, Light Diesel Oil and Molasses, in respect of which, admittedly exemption has not been sought for by the petitioner. Thus there is no dispute on the factual position that all conditions as laid down by section 3(4) and the proviso thereunder have been complied with in this case. This issue has been consi .....

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..... 09 to file a reply and thereafter filed detailed objections on 30.06.2009 explaining the basis of the claim and reiterating its eligibility for concessional rate under section 3(4) of the Act. Inter alia, the petitioner also sought some time to rectify the defects pointed out in the pre-assessment notice and re-present the Forms duly corrected and containing all details as required/sought for. 5. The Assessing Authority however directed the petitioner to carry out the rectification on or before 30.06.2009. By letter dated 01.07.2009 the petitioner sought extension of time for rectification of the Forms pointing out that a mere four days had been granted for such rectification which was impossible since the dealers in question were spread far and wide over the entire State of Tamil Nadu. A copy of the letter was marked to the Joint Commissioner with a request for his intervention in the matter. The Joint Commissioner, vide letter dated 02.07.2009, instructed the Assessing Officer to grant time as sought for in line with the principles of natural justice. In gross violation of the instructions of the superior officer, the Assessing Authority has passed the impugned order of assessmen .....

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..... l Oil and Molasses, sold by it to registered dealers within the State. The exemption claimed is in terms of section 3(3) of the Act, extracted below: 'Section 3(3) Notwithstanding anything contained in subsection( 2),(2-A) or (2- C), but subject to the provisions of sub-section (1), the tax payable by a dealer in respect of sale of any goods including consumables, packing materials and labels, but excluding plant and machinery, to another dealer for use by the latter in the manufacture, and assembling, packing or labeling in connection with such manufacture inside the Sate, for sale by him of any goods other than ethyl alcohol, absolute alcohol, methyl alcohol, rectified spirit, neutral spirit and denatured spirit, goods falling under Part A of the Third Schedule, goods falling under item 1 of the Sixth Schedule and arrack, shall be at the rate of only three percent on the turnover relating to such sale. Provided that the provisions of this sub-section shall not apply to - (a) any sale of high speed diesel oil, light diesel oil and molasses ; and ((a) any sale of goods falling under items 1 and 2 in Part F and item 2 in part I of the said schedule; and (b) any sale, unless the .....

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..... oducts Limited V. State of Kerala (18 VST 587). The Officer however appears to have lost sight of the fact that the aforesaid judgment has been rendered in the context of the provisions of Section 5(3) of the Kerala General Sales Tax Act (KGST) and the applicability of the same to the petitioners case, one that is governed by the provisions of the Tamil Nadu enactment, is not automatic but would have to be tested in the light of the specific statutory provisions. 13. The relevant provisions of the KGST are extracted below: 5. Levy of tax on sale or purchase of goods: - .......... (3) (i) Notwithstanding anything contained in sub-section (1) or sub section (2), the tax payable by a dealer in respect of any sale of the goods mentioned in the First Schedule by such dealer to another for use by the latter as component part of any other goods mentioned in the said Schedule, which he intends to manufacture inside the State for sale, shall be at the rate of only one per cent on the taxable turnover relating to such sale: PROVIDED that the provisions of sub-section shall not apply to any sale unless the dealer selling the goods furnishes to the assessing authority in the prescribed manner .....

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..... tions are satisfied in the present case and there is no dispute raised by the Revenue in this regard. The proviso restricts such benefit to the sale of specified commodities, that is, High Speed Diesel Oil, Light Diesel Oil and Molasses, in respect of which, admittedly exemption has not been sought for by the petitioner. Thus there is no dispute on the factual position that all conditions as laid down by section 3(4) and the proviso thereunder have been complied with in this case. 18. The case sought to be made out by the Assessing Authority is that the furnishing of the statutory Declaration by itself would not entitle the petitioner to concessional rate and the burden lies heavy upon it to establish that the goods sold have, in fact, been utilised by the purchasing industry, in manufacture. This issue has been considered and decided in a slew of decisions rendered by various Benches of this Court culminating in a decision of the First Bench of this Court in the case of Sree Murugan Engineering Products V. Commercial Tax Officer, Coimbatore (148 STC 419), rendered after considering earlier decisions of this Court in the case of State of Tamil Nadu V. Madras Petrochemicals Ltd. (89 .....

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