2015 (3) TMI 475 - HC - VAT and Sales Tax

Levy of sales tax on vend fee, levy of purchase tax under section 7A of the Tamil Nadu General Sales Tax Act - Imposition of penalties - Held that - As regards the liability under section 7A, which is a subject-matter in all the four tax cases, as fairly submitted by the learned senior counsel appear ing for the assessee, the same has to be answered against the assessee by following the decision of this court reported in 2004 (9) TMI 617 - MADRAS HIGH COURT (Mohan Breweries and Distilleries Limited v. Commercial Tax Officer, Porur Assessment Circle, Chennai). In the circumstances, the order of the Tribunal stands confirmed on this issue. As far as levy of penalty on this turnover is concerned, as rightly pointed out by the learned senior counsel appearing for the assessee the decision on the liability under section 7A was considered in the decision reported in 2004 (9) TMI 617 - MADRAS HIGH COURT (Mohan Breweries and Distilleries Limited v. Commercial Tax Officer, Porur Assessment Circle, Chennai) on September 10, 2004 on the dispute raised based on the Commissioner's clarification, we do not find any justifiable ground to accept the plea of the Revenue that the facts of the case calls for imposition of penalty. Hence, applying the ratio of the decision reported in 2001 (9) TMI 1101 - MADRAS HIGH COURT (Appollo Saline Pharmaceuticals (P) Limited v. Deputy Commercial Tax Officer) and taking note of the decision reported in 2004 (9) TMI 617 - MADRAS HIGH COURT (Mohan Breweries and Distilleries Limited v. Commercial Tax Officer, Porur Assess ment Circle, Chennai), we have no hesitation in accepting the plea of the assessee; consequently, penalty levied on the turnover relating to section 7A Since reported in Mohan Breweries and Distilleries Ltd. v. State of Tamil Nadu 2014 (1) TMI 99 - MADRAS HIGH COURT . stands deleted. Thus, the question raised in T.C. (R) Nos. 1669, 1857, 1667 of 2008 and 13 of 2009 on the levy of penalty on purchase tax stands cancelled. As far as the penalty levied on account of the non-inclusion of excise duty in the turnover is concerned, we again accept the argument of the learned senior counsel appearing for the assessee that till the decision was rendered by this court in 1989 (4) TMI 308 - MADRAS HIGH COURT (Mohan Breweries and Distilleries Ltd. v. Commercial Tax Officer), the assessee acted on the basis of the various amendments that had come to the provisions of the Prohibition Act as well as the liquor vending rules and manufacturing rules and the arrangements made between the assessee, Tasmac and the Government as regards the liability of the assessee and with the bona fide dispute thus raised by the assessee as to the includability of the excise duty, we do not find any justifiable ground to accept the plea of the Revenue as to the absence of bona fides of its claim. - Decided partly in favour of assessee.

Summary

Issues Involved:
- Levy of sales tax on vend fee
- Levy of purchase tax under section 7A on purchase of empty bottles from unregistered dealers
- Penalty levied under section 12(3) and 12(5)(iii) of the Tamil Nadu General Sales Tax Act

Levy of Sales Tax on Vend Fee:
The assessee filed a tax case against the order of the Tamil Nadu Sales Tax Appellate Tribunal for assessment years 1986-87 to 1989-90. The questions raised related to the levy of sales tax on vend fee, purchase tax under section 7A on empty bottles from unregistered dealers, and penalties under sections 12(3) and 12(5)(iii) of the Tamil Nadu General Sales Tax Act. The court noted that the vend fee inclusion in turnover was covered by a previous decision in favor of the assessee. Therefore, the question of sales tax on vend fee did not arise, leading to the deletion of penalties related to vend fee.

Levy of Purchase Tax under Section 7A:
Regarding the purchase tax on empty bottles, the court referred to a previous decision against the assessee. The court confirmed the assessment under section 7A of the Tamil Nadu General Sales Tax Act for the turnover on the purchase of empty bottles from unregistered dealers. The penalties related to this purchase tax were also canceled based on the court's decision.

Penalty Levied under Section 12(3) and 12(5)(iii):
The court considered the levy of penalties on excise duty inclusion in turnover. The assessee argued that there was a genuine dispute regarding the excise duty's inclusion until a court decision clarified the matter in 1989. The court accepted this argument and canceled the penalties related to excise duty inclusion. The court also noted that the dispute had been ongoing since 1987-88, and based on previous decisions, penalties under sections 12(3) and 12(5)(iii) were deleted. Consequently, the court partly allowed the Tax Case (Revisions) and closed the related motion.

This detailed analysis of the judgment provides insights into the court's decisions on the issues of sales tax on vend fee, purchase tax under section 7A, and penalties levied under the Tamil Nadu General Sales Tax Act.