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2015 (8) TMI 447 - ANDHRA PRADESH HIGH COURTLevy of sales tax / CST on manufacturing of cine wall posters - nature of activity - sale or works contract - printing the wall poster as per the requirement of the customer - Revision of order by the commissioner Whether Commissioner could have revised order of ADC on ground that appeal should not have been entertained as it was filed belatedly Held that:- Commissioner, in his earlier notice, did not propose to revise order of ADC on ground that he could not have entertained appeal after limitation prescribed for preferring appeal had expired Matter was remanded to Commissioner to decide whether activity, undertaken by appellants, amounted to sale and was liable to be taxed or not It was, therefore, not open to Commissioner to revise order of ADC on grounds other than those referred to him and on ground that appeal could not have been entertained belatedly Therefore order of Commissioner, seeking to revise order of ADC hereby set aside Decided against revenue. Printing and Supply of cine-walls Held that:- In order to constitute sale it is necessary that there is agreement between parties for purpose of transferring title to goods, agreement must be supported by money consideration and property should actually pass in goods For being classified as works contract transaction, under consideration, must be composite transaction involving both goods and services If transaction involves only service, i.e. work and labour, then it cannot be treated as works contract Expression tax on sale or purchase of goods in Entry 54 of List II of Seventh Schedule, when read with definition clause 29-A of Article 366, includes tax on transfer of property in goods whether as goods, or in form other than goods, involved in execution of works contract Authorities had treated business transactions of assessees as sale of goods, and not as works contracts Work involving preparation of negatives of wall-posters, was exclusively job work involving skill and labour, hence price charged thereof could not be subject to sales tax However, second part of work involving printing of positive prints of wall- posters, was deemed to be works contract and, as such, tax was levied Activity of printing and supply of cine wall-posters cannot be considered as failing under terms fitting out, improvement or repair, as supply of cine wall-posters was not supply of goods; and there was no improvement or repair, consequently these transactions cannot constitute specified works contracts referred to in Section 2(t), therefore not exigible to tax under APGST Act It was only after 01.04.2005 that all kinds of works contracts were brought within ambit of works contracts as defined in Section 2(ja) of CST Act Therefore no tax could have been levied on such works contracts under CST Act also Subject transactions were not liable to tax either under APGST Act or CST Act during the relevant period Decided against revenue. Payment of Tax Against refund order Whether Commissioner could have directed appellants to pay tax under APGST, 1957, and CST, 1956, when order of ADC setting aside order of assessing authority withholding refund under Section 33-BB had attained finality Held that:- As appellants had already paid tax, consequence of order of ADC was that they were entitled to claim refund of tax paid earlier Upon revisional order of Commissioner, appellants-assessees were liable to pay tax As long as order of Commissioner remained in force, assessees continued to remain liable to pay tax and was not disabled from revising earlier order of ADC Decided in favour of revenue. Tax collected from Customers Whether appellants can be permitted to retain amounts collected by them from their customers on manufacture, printing and supply of cine wall-posters Held that:- appellants may not be liable to pay tax as subject transactions were not sale of goods, but it was not disputed that appellants have collected tax from their customers on manufacture, printing and supply of cine wall- posters Doctrine of unjust enrichment is just and salutary doctrine As appellants were not exigible to tax during relevant period, appellants cannot be permitted to retain amount collected by them from their customers as that would resulted in their unjust enrichment Onus was on appellants to show that they have not collected tax from their customers to whom they supplied cine wall-posters manufactured and printed by them Decided against Appellant.
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