TMI Blog2024 (1) TMI 712X X X X Extracts X X X X X X X X Extracts X X X X ..... vision Cases filed by the assessee where it was held that A plain reading of the aforesaid proviso would clearly give an indication that when a purchase of cement is made by a manufacturer of a finished good like asbestos sheets, pipes, paint manufacturers, hallow bricks, it would be eligible for purchase of cement at a concessional rate. The petitioner was not a manufacturer of any finished goods like the ones mentioned in the preceding paragraph. Thus, no strong case has been made by the Revenue calling for interference with the order passed by the Tribunal - The view of the Tribunal is also based upon the finding of the High Court of Andhra Pradesh in the case of B. SEENAIAH AND CO. VERSUS COMMERCIAL TAX OFFICER, KHAIRATABAD CIRCLE, HYDERABAD AND OTHERS [ 2001 (6) TMI 794 - ANDHRA PRADESH HIGH COURT] wherein the High Court of Andhra Pradesh dealing with the phrase deemed sale has held While completing the execution of the works contract the property in the goods passed to the contractee from the contractor, the petitioner, at the time they were incorporated in the laying of the road. Therefore, there was a clear transfer of property in goods, while completing the works ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they also sell the cement pipes in the course of interstate trade and commerce. 6. The assessee had got himself registered for issuance of G2 Certificate which stood issued on 21.01.1989. Under the G2 Certificate, the assessee could make local purchase of cement by issuing G Forms and the said purchase would be at concessional rate of tax on such purchases. The Commissioner (CT) had issued a circular on 08.01.2005 vide Ref.No.A1(4)1437/2004, wherein, it was held that contractors executing works contract would not be entitled to purchase cement by issuing G Forms and they would not be permitted to purchase cement at concessional rate of tax under Section 5B of the APGST Act, 1957. The assessee was in the business of execution of works contract and also had manufacturing units wherein the cement pipes were manufactured. In the course of execution of the works contract, they used the cement pipes manufactured from their manufacturing unit. 7. It was the contention of the Revenue that the assessee had utilized the cement in the execution of the works contract and thus they have violated the declaration and hence liable to pay penalty under Section 5B read with Section 7-A(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 5G of the APGST Act, 1957. It is this order which has been reversed by the Tribunal leading to filing of the present Tax Revision Cases. 11. Having heard the contentions put forth on either side and on perusal of records, it would be relevant at this juncture, to take note of the admitted finding of facts arrived at by the Tribunal which for ready reference is reproduced herein under: 12. Now, it has to be seen whether the appellant is liable to pay penalty U/s.5B(2) read with Sec.7-A(2) of the Act. If the appellant is liable to pay penalty U/s.5B(2) then only Section 7-A(2) can be read with Sec.5B(2) of the Act. 13. Admittedly, the appellant is having manufacturing units of cement pipes. Therefore, no penalty can be levied under clause 1 of Sub-Section 2 of Section.5B. Now, it has to be seen whether clause 2 of sub-Section 2 of Sec.5B attracted i.e., whether the appellant have purchased goods by furnishing declaration under the proviso to sub-section 1 sold such goods contrary to such declaration. The appellant has not sold cement, hence clause 2 of Sec.5B is also not attracted. 14. The declaration shall be in form G. As discussed above Form G contains the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orms for manufacturing cement pipes is not in dispute. Of course, the proviso to the above referred G.O., shows that the dealers who produce the finished goods for sale are entitled for concessional rate of tax U/s.5B. The appellant has manufactured cement pipes. The turnover pertaining to the cement pipes used in the works contract is in dispute. There cannot be any doubt that the cement pipes can be treated as finished goods, because it is also not in dispute that the appellant sold a part of manufactured cement pipes in the course of interstate trade and commerce. It is also not in dispute that that some of the finished goods i.e., cement pipes are used in works contract. 19. In the case between Sangam Healthcare Products Limited Vs. State of Andhra Pradesh reported in (2005) 41 APSTJ 1, this Tribunal held that the penalty under Section 5B(2)(ii) could be leived only under two circumstances. One is when the dealer purchases goods by issuing G Forms without having its manufacturing unit. Another circumstance is having manufacturing unit and having purchased goods by issuing G Forms, sells such goods contrary to such declaration made in G Form. Therefore Sec.5B(2)(ii) does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t would be eligible for purchase of cement at a concessional rate. The petitioner was not a manufacturer of any finished goods like the ones mentioned in the preceding paragraph. The Government of India, Ministry of Finance, Department of Revenue itself vide their Circular No.237 of 1996, while clarifying as to whether the product ready-mix concrete can be classified as a finished product or not, held that ready-mix concrete is a material in a wet process state and is not a finished product like block or pre-caste tiles, beams, etc. and had thus, clarified that all pending disputes and assessments on the issue may be settled in the light of the aforesaid guidelines. 14. In the light of the decision of this Bench in the aforesaid Tax Revision Cases leading of which being Tax Revision Case No.8 of 2008, and the categorical finding of facts given by the Tribunal, we are of the considered opinion that no strong case has been made by the Revenue calling for interference with the order passed by the Tribunal. The view of the Tribunal is also based upon the finding of the High Court of Andhra Pradesh in the case of B. Seenaiah Co. Vs. Commercial Tax Officer, Kairatabasd Circle, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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