2003 (12) TMI 596 - AT - VAT and Sales Tax

Summary

Issues:
Challenge to notice under the Bengal Finance (Sales Tax) Act, 1941 regarding deduction claim under section 5(2)(a)(va) and review of appellate order under rule 79.

Detailed Analysis:
1. The petitioner challenged a notice issued under rule 79 of the Bengal Sales Tax Rules, 1941, based on the claim that the notice was contrary to the provisions of the Bengal Finance (Sales Tax) Act, 1941. The petitioner had submitted returns claiming deduction under section 5(2)(a)(va) for the sale of wires manufactured from wire rods. The respondent disallowed the claim for consignment of goods sold at Delhi but allowed the claim under section 5(2)(a)(v) considering wire rods and wires as the same commodity. An appeal was filed disputing the rejection, which led to the modification of the assessment order without affecting the exemption under section 5(2)(a)(va). The petitioner later received a notice to review the appellate order, which was contested on the grounds of legality and violation of the doctrine of merger.

2. The main contention revolved around the legality of the notice dated January 3, 2000, and its compliance with the doctrine of merger. The petitioner argued that the appellate order could not be reviewed as there was no mistake apparent on the face of the record. The respondents, on the other hand, claimed authority under section 20 of the Act, 1941 to review any order passed. The petitioner emphasized that the exemption granted under section 5(2)(a)(va) was based on a judgment by the Tribunal and was not challenged in the appeal, thus not subject to review by the appellate authority.

3. The judgment cited legal precedents to support the argument against the review of the exemption granted. It highlighted the principle of merger, stating that the decision of the appellate authority supersedes that of the lower authority unless specifically challenged. The notice to review the assessment order was deemed illegal as it ignored established legal principles and the exemption granted under section 5(2)(a)(va). The judgment concluded by allowing the application, setting aside the impugned notice, and restraining the respondents from implementing it.

4. The Technical Member of the Tribunal agreed with the decision to allow the application, thereby concluding the case in favor of the petitioner. The detailed analysis of the legal issues involved in challenging the notice and reviewing the appellate order under the Bengal Finance (Sales Tax) Act, 1941, provided a comprehensive understanding of the judgment delivered by the Appellate Tribunal.