TMI Blog2022 (9) TMI 1209X X X X Extracts X X X X X X X X Extracts X X X X ..... ON [ 1988 (10) TMI 106 - SUPREME COURT] , and RASHTRIYA ISPAT NIGAM LTD. VERSUS STATE OF ANDHRA PRADESH [ 1998 (2) TMI 480 - SUPREME COURT] , there is no dispute on the proposition that transaction of supply of cement by the Assessee to its contractor and recovery of the amount from bills of the contractor would amount to second sale of cement by the Assessee to its contractor. In fact, Respondent-Tata Steel Ltd. has not joined issues on said proposition of law and has accepted said proposition of law. In the entire writ application, no dispute is raised that cement is leviable at first point of sale and tax has already been paid on such cement - on examination of provisions of Section 11 of the Bihar Finance Act, 1981 and the relevant N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee. 2. The dispute in the instant writ petition pertains to the period 1989-90, wherein, under the provisions of Section 17(2)(b) of the Bihar Finance Act, 1981, regular assessment order dated 17.03.1993 was passed by the Assessing Authority in respect of the Assessee-Tata Steel Ltd. The Assessee during the relevant period, purchased cement after paying tax and supplied it to its contractor to execute works on its behalf worth Rs. 1,03,62,379/- and, at the time of assessment, the Assessee claimed that since the tax on purchase of cement has already been paid at the first point and supply of cement was made to the contractor for use in the work of Assessee itself, therefore, no tax could have been levied on supply of cement by it to its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... additional levy of tax on supply of cement to the contractor is illegal and cannot be sustained in the eye of law. Taking exception to the said finding of Commercial Taxes Tribunal, the present writ application has been filed by State of Jharkhand. 3. Mr. Sachin Kumar, AAG-II, appearing for the State of Jharkhand, has vehemently assailed the portion of the Judgment of the Tribunal and has contended, inter alia, that supply of cement by the Assessee-Tata Steel Ltd. to its contractor for carrying out its own work would be deemed to be a sale, as, Tata Steel Ltd. has, admittedly, deducted the value of cement from the contractor s bill. By placing reliance upon the decisions of the Hon ble Apex Court in the case of M/s. N.M. Goel and Co. V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IX-C at the stage of subsequent sale of cement by it to its contractor, and, since the said Form has not been produced, tax has been rightly levied by the Assessing Officer, which was not appreciated by Commercial Taxes Tribunal. 4. Per contra, Mr. Sumeet Gadodia, Advocate assisted by Mrs. Akansha Mittal, Advocate, appearing for the Assessee supported the Judgment of the Tribunal and contended that additional levy of tax on supply of cement by Tata Steel Ltd. to its contractor is illegal and cannot be sustained. It has been contended that there is no dispute that cement was levied to tax at the first point of sale and, admittedly, tax has been levied and collected by the State of Jharkhand from Tata Steel Ltd. on sale of cement at the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bills would amount to second sale in the eye of law, then also, no tax can be levied, as cement was chargeable to first point of sale and tax was levied upon it. It has been further submitted that production of statutory Form IX-C at the subsequent stage of sale is merely directory in nature and not mandatory especially when cement is leviable to tax on first point of sale, and, there is no dispute that it has suffered the incidence of tax. Reliance was placed by Respondent on the following decisions:- (i) State of Tamil Nadu v. Raman Co., reported in (1994) 93 STC 185 (SC), Para-verbatim/ (ii) Food Corporation of India v. Commissioner of Commercial Taxes, reported in (1993) SCC Online Pat. 322 -- Para 13, 14. (iii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the first point of sale. 7. We have carefully perused the pleadings made in the writ petition as well as the statement of the Revenue counsel recorded at Para-9 of the Judgment of the Tribunal. In the entire writ application, no dispute is raised that cement is leviable at first point of sale and tax has already been paid on such cement. It is during the course of arguments alone it was contended by the Petitioner-State of Jharkhand that there were certain procedural requirement, like, submission of statutory Form IX-C by the Assessee at the time of executing second sale to claim that second sale is not chargeable to tax. 8. We have examined the provisions of Section 11 of the Bihar Finance Act, 1981 and the relevant Notification ..... X X X X Extracts X X X X X X X X Extracts X X X X
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