TMI Blog2022 (3) TMI 931X X X X Extracts X X X X X X X X Extracts X X X X ..... y 10 times may be disproportionate and, therefore, modifies the impugned assessment order, as affirmed by the ACST and the Tribunal, from 10 times to 5 times the turnover. The Court is unable to agree with the above submissions of the Assessee. Although the RC of the Assessee incorporates ice cream which the Assessee deals in, it does not contain the above 4 items viz., tricycle, freezer, pushcart and stabilizer. While this may be incidental to the selling of ice cream, unless these items are specifically incorporated in the RC, the 3rd proviso to Rule 36 will not stand attracted. Consequently, the Court is unable to agree with the submission of the Assessee and upholds the findings of the AO as affirmed by the Tribunal. The revisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s an issue concerning classification. The case of the Assessee is that the product in question i.e. huggies , which are actually diapers, falls under Entry 84 of List C of Schedule to the Orissa Sales Tax Act, 1947 which reads Hosiery goods and Readymade garments and are exigible to 4% sales tax. 3. In rejecting such contention, the Assistant Commissioner of Sales Tax (ACST), Cuttack has noted that another product of the Assessee, kotex , which is a sanitary napkin, has been treated as such and classified as falling under the residual entry making it exigible to 12% tax. The ACST has concluded that given the nature of the function performed by the diapers i.e. huggies, they would be no different from sanitary napkins inasmuch as, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee and against the Department by holding that the Tribunal was not justified in upholding the finding of the ACST and the STO who declined the claim for deduction of trade discount. 8. As regard question (iii), learned counsel for the Assessee submits that of the 45 consignments which were sent by way of branch transfer, explanation could not be offered by the Assessee by producing documents in respect of one container. It is seen that despite opportunities, the Assessee could not produce evidence to explain the branch transfer in respect of that container. It is seen that the AO has enhanced the turnover by 10 times by treating this as fraud . The Court is of the view that enhancement by 10 times may be disproportionate and, there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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