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THE COMMISSIONER, TRADE TAX, U.P. LUCKNOW versus S/S SARU SMELTING PVT. LTD. MEERUT

High Court of Judicature at Allahabad

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The Commissioner, Trade Tax, U.P. Lucknow v. S/S Saru Smelting Pvt. Ltd. Meerut - SALES/TRADE TAX REVISION DEFECTIVE No. 531 of 1998 [2005] RD-AH 2157 (29 August 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court no. 55

Trade Tax Revision no. (531) Of 1998.

AND

Trade Tax Revision no. (529) Of 1998

AND

Trade Tax Revision no. (532) Of 1998.

AND

Trade Tax Revision no. (533) Of 1998.

AND

Trade Tax Revision no. (567) Of 1998.

AND

Trade Tax Revision no.   (569) Of 1998.

AND

Trade Tax Revision no.   (635) Of 1998

The Commissioner of Trade Tax, U. P. Lucknow. ...Applicant.

Vs

S/S Saru  Smelting Pvt. Ltd., Meerut. .... Opp. Party.

Hon'ble Rajes Kumar, J.

These seven revisions under Section 11 of U. P. Trade Tax Act (hereinafter referred to as ''Act') are directed against the order of Tribunal dated 02.12.1997  relating to the assessment years 1985-86 to 1989-90 under the U. P. Trade Tax Act as well as under the Central Sales Tax Act.

The following questions have been raised in the present revision:-

(i) Whether on the facts and in the circumstances of the case, the Trade Tax Tribunal was legally justified in holding that item no. 9 to 33 mentioned in the assessment order are metal and alloys and taxing these commodities under consideration as "all other ores, metals and alloys at the rate of 2%.

(ii) Whether on the facts and in the circumstances of the case, the Trade Tax Tribunal was legally justified to pass the order in Second Appeal filed by the Revenue without making any observation on the point that the assessee had no deposited the realised tax in view of the provisions of Section 29-A (1) of the Trade Tax Act.

Heard learned Standing Counsel.

Learned Standing Counsel submitted that item nos. 7 to 33 are mentioned in the assessment order.  These items according to him is not a primary metal and therefore, not liable to tax as a metal @ 2%. He submitted that the Apex Court in the case of Hindustan Aluminum Corporation Vs. State of U. P. reported in 1981 UPTC page 1249 interpreted the entry of "all kinds of minerals, ores, metals and alloys...." and held only a primary metal is covered under the said entry. He submitted that the decision of this Court in the case of CST Vs. M/S Devi Dayal Aluminum Industries Pvt. Ltd. reported in 1992 UPTC page 1145 has been over ruled by the Apex Court in the case of CST Vs. M/S Devi Dayal Aluminum Industries Pvt. Ltd. (supra) in Civil Appeal arising out of SLP (C) no. 3188 of 1995 decided on 24.8.1997.  He submitted that the aforesaid decision of Apex Court have been considered by this Court in the case of Commissioner of Sales Tax Vs. S/S Vijay Aluminum Works, Kanpur reported in UPTC  1999 (2) page 1089.  He submitted that the Tribunal has treated the aforesaid items covered under the aforesaid entry of metal and also taxable @ of 2% relying upon the decision of this Court in the case of CST Vs. M/S Devi Dayal Aluminum Industries Pvt. Ltd. (supra) which has been over ruled by the Apex Court and therefore, order of Tribunal is erroneous. He submitted that each and every item is to be examined afresh in the light of observations of Apex Court in the case of Hindustan Aluminum Corporation Vs. State of U. P. (supra) and the decision of Apex Court in the case of CST Vs. M/S Devi Dayal Aluminum Industries Pvt. Ltd. (supra).

Learned Counsel for the applicant also submitted that the matter requires reconsideration by the Tribunal.  In view of the aforesaid facts and circumstances of the case, order of Tribunal is set aside.  The matter is remanded back to the Tribunal to decide the appeal afresh.  Tribunal is directed to consider the taxability of each and every items with reference to the  decision of Apex Court in the case of Hindustan Aluminum Corporation Vs. State of U. P. (supra) and the decision of Apex Court in Civil Appeal arising out of SLP (C) no. 3188 of 1995 decided on 24.8.1997 in  CST Vs. Devi Dayal Aluminum Pvt. Ltd. (supra).   Learned Standing Counsel submitted that the Tribunal has not considered the applicability of the provision of Section 29-A (1) of the Act.  Tribunal is directed to decide  this aspect of the matter while deciding the appeal afresh.

In the result, all the above seven revisions are allowed.  Order of Tribunal dated 02.12.1997 are set aside and the matters are remanded back to the Tribunal to decide all the appeals afresh in the light of observations made above.

Dt:29.08.2005.

MZ/


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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