TMI Blog2020 (7) TMI 383X X X X Extracts X X X X X X X X Extracts X X X X ..... rders dated 28.7.2009, reviewed the earlier assessment orders, which is impermissible in law by invoking Section 55 of the Act. The mistake should be apparent on the face of the record. Only if all these features are available, the assessment can be reopened by invoking the power under Section 55 of the Act. Therefore, the revision of assessment dated 28.7.2009 is wholly without jurisdiction - Hence, the issue is decided in favour of the petitioners and against the Revenue. Whether the Tribunal was right in denying the benefit of exemption, largely, by referring to the decision of the Hon ble Supreme Court in the case of COASTAL CHEMICALS LTD. VERSUS COMMERCIAL TAX OFFICER, AP AND OTHERS (AND OTHER APPEALS) [ 1999 (10) TMI 599 - SUPREME COURT] and the decision of the Kerala High Court in the case of TEAKTEX PROCESSING COMPLEX LIMITED VERSUS STATE OF KERALA [ 2002 (10) TMI 761 - KERALA HIGH COURT] ? - HELD THAT:- In view of the factual position in the decision in the case of Coastal Chemicals Limited wherein the question involved was as to whether the natural gas fell within the meaning of the word 'consumables' in Section 5B(1) of the Andhra Pradesh General Sales Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gard to tax alone. 2. We have elaborately heard Mr.D.Vijayakumar, learned counsel appearing for the petitioners and Mrs.G.Dhana Madhri, learned Government Advocate appearing for the respondents. 3. The revisions were admitted on 12.2.2016 on the following substantial questions of law : (i) Whether the Tribunal is justified in holding that the carbide tip tools sold by the petitioner to the dealer of 100% E.O.U. are within the meaning of machinery spare parts/ accessories or consumables ? (ii) Whether the Tribunal is justified in holding that the petitioner is not eligible for exemption as per G.O. Ms.No.528/21.11.97 for the sales made to dealer of 100% E.O.U. ? (iii) Whether the Tribunal is justified in holding that the goods (carbide tip inerts) sold by the petitioner are not consumable but only spare parts and accessories ? and (iv) Whether the Tribunal is justified in holding that though the goods (carbide tip inserts) used for cutting purpose lost is utility, it would not lose its identity to grant exemption to the petitioner? 4. In these revisions, the issues, which arise for consideration are (i) as to whether the reopening of assessment by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ranted in the said Government Order would not apply to tools and machinery, etc., and that the exemption on such turnover has been erroneously granted and it was proposed to rectify the mistake by invoking Section 55 of the Act. The dealers filed their objections on 15.7.2009 stating that they did not sell any machinery items, that what was sold by them were consumable items and that they were exempted as the goods were sold to 100% EOUs. The Assessing Officer stated that the dealers did not file any details with supporting documents for his verification and accordingly, overruled the objections and confirmed the proposal in the notices dated 29.4.2009 by the assessment orders dated 28.7.2009. 9. These orders were put to challenge by the dealers before the First Appellate Authority, who allowed the appeals by order dated 09.4.2010 inter alia holding that the commodity dealt with by the petitioners was not machinery parts or tools as found by the Assessing Officer, but it is a carbide tip inserts sold, which was used as a consumable for cutting only. It was further held that the dealers would be eligible to avail the exemption. The First Appellate Authority agreed that the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Tribunal had become final. 12. The first question to be decided is as to whether the power under Section 55 of the Act could have been invoked and Section 55 of the Act gives power to rectify any error apparent on the face of the record. The Assessing Officer or the Appellate Authority or the Revisional Authority including the Appellate Tribunal may, at any time, within five years from the date of any order passed by it, rectify any error apparent on the face of the record. However, if such rectification would result in enhancement of the assessment or penalty, the dealer should be given a reasonable opportunity of being heard. The power under Section 55 of the Act is not a power of review, but it is a power of rectification only when there is an error apparent on the face of the record. 13. Therefore, the intention of the Legislature was to grant power to the Assessing Officer or the Appellate Authority or the Tribunal to rectify its orders when there is an error apparent on the face of the record. Hence, the power under Section 55 of the Act cannot be used to review an order of assessment by reopening an assessment. Such power has not been conferred on the Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plex Limited is concerned, the question was as to whether the dyes and chemicals used in the execution of job work was taxable at the hands of the dealer. The factual position is entirely different in the said case and could not have been applied to the case on hand. 17. The most important aspect, which is to be noted, is that the exemption has been granted by the State Government for sale of certain items of goods to 100% EOUs in the State and the units located in Chennai Export Processing Zone. Therefore, the object of exemption is to promote exports. The Tribunal proceeded largely by examining as to what would be the meaning of the term consumable and referred to the two decisions and held that though the carbide tip inserts lose their utility, they do not lose identity. The Tribunal should have interpreted the expression 'consumable goods and if the same is done, the nature of the goods supplied and whether the same gets consumed would be required to be examined. 18. Oxford Advanced Dictionary 9th Edition defines the expression 'consumable goods' as those goods, which are intended to be used fairly quickly and then replaced. Computer consumables such as t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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