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2019 (11) TMI 313

..... tified in holding that spent malt is not cattle fodder and therefore not exempt from trade tax under Notification KA.NI.-3129/XI-9(40)/92 U.P. Act 15/48- Order-(38)2000, dated 30.9.2000 w.e.f. 1.10.2000? - HELD THAT:- In absence of any ground of appeal having been raised by the revenue before the Tribunal seeking such enhancement on the ground of classification of the goods, the Tribunal has clearly erred in subjecting the goods spent malt treating them to be unclassified goods - In so far as the Tribunal has dismissed the assessee's appeal on that count and drawn a third conclusion that order is found to be lacking as noted above. It is, accordingly, set aside and the matter is remitted to the Tribunal to pass a fresh order in accordan .....

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..... of the Commercial Tax Tribunal, Meerut dated 13.10.2010 passed in Second Appeal No. 1 of 2009 for A.Y. 2004-05 (U.P.) and Second Appeal No.2 of 2009 for A.Y. 04-05 (Central) filed by the assessee and Second Appeal No. 61 of 2009 for A.Y. 2004-05 (U.P.) and Second Appeal No.62 of 2009 for A.Y. 2004-05 (Central) filed by the revenue. By that order, the Tribunal has partly allowed all the appeals. With respect to rate of tax on spent malt, the Tribunal has treated the same to be unclassified goods and subjected them at a highest rate after reversing the finding of the first appeal authority in that regard who assessed tax @ 5 % treating them to be old un-serviceable machinery etc. In so far as, rejection of books of account is concerned, the T .....

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..... en laid down by the Hon'ble Supreme Court in the case of C.S.T. Vs. Ram Chandra Asha Ram reported in 2000 U.P.T.C. 636 SC, wherein the issue involved was whether damaged wheat was cattle fodder. In that case, the Supreme Court held as below: "What is exempted under the Notification of 5.6.85 is cattle fodder. In generic sense the expression "cattle fodder" is inclusive of everything that is fed to cattle including damaged wheat. In the decision relied on by the learned Counsel for the Appellant this aspect is noticed but in that particular case fodder was defined as "fodder except cotton seed and oil cakes". In the present case there is no such exclusion of the damaged wheat that is processed and used as feed fo .....

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..... distillers' soluble etc. are described as useful animal feed along with dried residues of the fermentation industries that produce beer and distilled spirits. In the instant case, the assessee is engaged in manufacture of beer and it has obtained spent malt from brewers grains. 7. In so far as the remand proceedings had been stayed by this Court, it has been submitted by learned Standing Counsel that before the interim order came into existence on 12.1.2012, the assessing authority had already passed an order on remand. Sri Nishant Mishra, learned counsel for the assessee would inform that the said exparte order of assessment, was set aside, however, there was second exparte order against which a second recall application is claimed to .....

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..... nal has not erred in exercise of its jurisdiction in appeal, as it could very well vary the order in appeal. However, such submission cannot be accepted. In absence of any ground of appeal having been raised by the revenue before the Tribunal seeking such enhancement on the ground of classification of the goods, the Tribunal has clearly erred in subjecting the goods spent malt treating them to be unclassified goods. 11. In so far as the Tribunal has dismissed the assessee's appeal on that count and drawn a third conclusion that order is found to be lacking as noted above. It is, accordingly, set aside and the matter is remitted to the Tribunal to pass a fresh order in accordance with law in light of the observation made, as expeditiousl .....

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