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THE COMMISSIONER TRADE TAX U.P.LUCKNOW versus DHARAMPAL SATYAPAL LTD.

High Court of Judicature at Allahabad

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The Commissioner Trade Tax U.P.Lucknow v. Dharampal Satyapal Ltd. - SALES/TRADE TAX REVISION No. 691 of 1996 [2005] RD-AH 5178 (28 October 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

RESERVED

TRADE TAX REVISION NO.691 OF 1996.

AND

TRADE TAX REVISION NO.709 OF 1996.

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

S/S Dharampal Satyapal Ltd., NOIDA.                        Opp-party

Hon'ble Rajes Kumar, J.

Present two revisions under section 11 of the U.P. Trade Tax Act (hereinafter referred to as "the Act") are directed against the order of the Tribunal dated 23rd January, 1996 relating to the assessment year, 1994-95, both under the U.P. Trade Tax Act and Central Sales Tax Act.

Dealer/opposite party (hereinafter referred to as "the dealer") applied for recognition certificate under section 4-B of the Act. Recognition certificate has been granted by the Sales Tax Officer vide its order dated 23rd March, 1990 and in pursuance thereof, recognition certificate in Form 19 has been issued. In the certificate, the following has been stated.

fcdzhdj vf/kdkjh [k.M ,d ds vkns'k fnukad 23-3-90 ds vuqikyu esa iku elkyk Vkcsdks feDl iku elkyk] ehBk iku elkyk rFkk iku elkys ds vU; feDlpj ds fuekZ.k esa iz;ksxkFkZ dPpk eky isSfdax eVsfj;y lyaXu lwph ds vuqlkj rFkk e'khujh lyaXu lwph ds vuqlkj /kkjk 4 [k ds vUrZxr fj;k;rh nj esa dz; fd;s tkus gsrq ;g izek.k i= izHAkoh fnukad 23-2-89 ls 31-3-90 ds fy;s tkjh fd;k x;k k

The said certificate has been subsequently renewed from time to time. Dealer thereafter vide application dated 28.07.1994 sought the inclusion of the following items in the recognition certificate which was alleged to be required for packing purposes.

"PVC granules/powder in different quality for packing material for our own use."

Assessing authority vide order dated 9.2.1995 rejected the application on the ground that under the provision of the Act, the benefit of concessional rate of tax is available only on the packing material while PVC granules/powder is not a packing material but is a raw material for the packing material. First appeal filed by the dealer was rejected. Dealer filed second appeal before the Tribunal which has been allowed by the impugned order and the assessing authority has been directed to include PVC granules/powder in the recognition certificate.

Heard learned Standing Counsel No one appears on behalf of the dealer/opposite party inspite the case being called twice.

Tribunal held that PVC material is not used for any other purposes than as a packing material. It has also been observed that the manufactured goods are packed in a plastic tins, boxes and pouches. Tribunal relied upon the decision of the Apex Court in the case of Ganesh Flour Mills and directed the assessing authority to include plastic granules/powder in the recognition certificate.

Learned Standing Counsel submitted that the dealer has been issued recognition certificate for the manufacturing of pan masala, tobacco mix pan masala, meetha pan masala and pan masala with other mixture and not for the manufacturing of packing material and dealer had been allowed to purchase the raw material, packing material (as per details) at concessional rate. The list of packing material includes packing card, card boxes, packing papers, adhesive tapes, poly pack pouches, vitomen papers, poly foils papers, wooden cases, strips, sutali, polythene, polythene bag, poly liminated material. The item PVC granules powder is not a packing material as such, but is a raw material for the manufacturing of packing material which is sought to be inserted while recognition certificate has not been granted for the manufacturing of any packing material. The manufactured item, as stated in the recognition certificate does not include the packing material and, therefore, the assessing authority has rightly refused to include the PVC granules/powder in the list of packing material.

He submitted that under section 4-B of the Act and the notification issued thereunder, the benefit of exemption or the concessional rate of tax is available only to the goods used in the manufacturing or packing of such goods and not to the raw material of the packing material. He submitted that the Tribunal has wrongly relied upon the decision of the Apex Court in the case of Lt. Governor, Delhi Versus M/S Ganesh Flour Mills Co. Ltd., reported in 1973 UPTC 641 in Civil Appeal No.1776 of 1969 dated 09.01.1973. He submitted that the decision in the Civil Appeal No.1776 of 1969 Lt. Governor, Delhi Versus M/S Ganesh Flour Mills Co. Ltd. is decision of the Apex Court and not of the Delhi High Court and is under the Central Sales Tax Act and not under the Delhi Sales Tax Act and the decision is based on the language of clause (c) of sub-section (3) of Section 8 of the Central Sales Tax Act.

I have perused the order of the Tribunal and the authorities below.

I find substance in the argument of the learned Standing Counsel.

Notification no. TT-2-1623/XI-7(159)/91-U.P. Act-15/48-Order-94 dated 21.5.1994 reads as follows.

"In exercise of the powers under section 4-B of Uttar Pradesh Trade Tax Act, 1948 (U.P. Act no.XV of 1948), read with section 21 of the Uttar Pradesh General Clauses Act,1904 ( U.P. Act No.1 of 1904) and in supersession  of all the previous notifications issued under the said section 4-B, the Governor is pleased to declare that with effect from June 1, 1994 and subject to condition and restriction specified in the said section 4-B, the tax shall be payable at the rateof 2 percent on the sale to or as the case may be purchase by, a dealer holding a valid recognition certificate under sub-section (2) of the said section 4-B of any raw material, processing material, consumable stores, machinery, plant, equipment, spare parts, accessories, components, fuel or lubricants required by him for the use in the manufacture of goods or of any goods required for use in the packing of goods manufactured by him:

Provided that no concession under this notification shall be admissible in respect of sale to or purchase by distilleries and breweries."

Section 4-B of the Act and the notification no. TT-2-1623/XI-7(159)/91-U.P. Act-15/48-Order-94 dated 21.5.1994 provides the benefit of concessional rate of tax or the exemption on the goods used in the manufacturing of notified goods or in the packing of such notified goods and not to the raw material of the packing material. PVC granules powder as such cannot be used for packing of the manufactured goods. It is raw material for the manufacturing of packing material. Recognition certificate shows that the dealer is not holding recognition certificate for the manufacturing of packing material, therefore, PVC granules was not eligible for the benefit of concessional rate of tax under section 4-B of the Act. The decision in the case of Lt. Governor, Delhi Versus M/S Ganesh Flour Mills Co. Ltd (supra) relied upon by the Tribunal is the decision of the Apex Court under the Central Sales Tax Act and is based on the language of clause (c) of sub-section (3) of Section 8 of the Act and is not applicable to the present case.

In the result, revision is allowed. The order of the Tribunal is set aside.

Dated.28.10.2005

VS.


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