2017 (12) TMI 1274 - HC - VAT and Sales Tax

Deletion of assessment of sale - sale of imported Cement - reduction of turnover of Iron & Steel, Shutters and Channels - revisionist treated as Manufacturer under Section 2 (ee) of the Act, 1948 without any evidence on record or any purchase from the unregistered dealer - whether there is any finding by any of the authorities that the revisionist has sold any goods after Manufacturing or Importing the same? Held that - The perusal of records shows that there is no finding by any of the authorities that the revisionist has sold the goods in question after Manufacturing or Importing the same - it appears that the submission of learned counsel for the revisionist has substance. The, learned Standing Counsel could not dispute the aforesaid submission of learned counsel for the revisionist. The Hon ble Supreme Court in the case of Commissioner of Customs (Preventive) vs. Vijay Dasarath Patel 2007 (3) TMI 11 - SUPREME COURT OF INDIA has held that where the order has been passed without adverting to the facts raised, then it is a question of law. Further, where the order is based on no evidence on record, it is liable to be interfered. The matter is remanded back to the learned Tribunal with the direction to consider and decide the matter afresh in accordance with law after taking into consideration the points raised by the revisionist - revision allowed by way of remand.

Issues Involved:
1. Justification of tax on self-manufactured shutters/channels without evidence of manufacturing.
2. Justification of tax on sale of imported Cement and Iron & Steel without evidence of import.
3. Imposition of tax without issuing a show cause notice.

Detailed Analysis:

1. Justification of tax on self-manufactured shutters/channels without evidence of manufacturing:
The revisionist argued that there was no evidence of manufacturing shutters or channels. The Tribunal confirmed the tax based on the assessment order, but the revisionist contended that no evidence was found during the survey to support the claim of manufacturing. The court found no finding by any authority that the revisionist sold goods after manufacturing them. The Supreme Court in M/s Jhunjhunwala vs. State of U.P. emphasized the need for factual determination of manufacturing activities, which was not done in this case. Therefore, the Tribunal's confirmation of tax on self-manufactured shutters/channels without evidence was unjustified.

2. Justification of tax on sale of imported Cement and Iron & Steel without evidence of import:
The revisionist also challenged the tax on imported Cement and Iron & Steel, asserting there was no evidence of such imports. The Tribunal upheld the assessment order, but the revisionist argued that no imports were made, and no purchases from unregistered dealers occurred. The court noted that there was no finding by any authority of the revisionist importing these goods. The Supreme Court in M/s Jhunjhunwala clarified that tax liability must be factually determined, and a circular cannot create such liability without evidence. Consequently, the Tribunal's decision to confirm the tax without evidence of import was incorrect.

3. Imposition of tax without issuing a show cause notice:
The revisionist contended that no show cause notice was issued regarding the import or manufacturing of goods. The Tribunal's order was based on the assessment order without addressing this procedural lapse. The court found merit in the revisionist's argument, as no allegation was made in the show cause notice about importing Cement or Iron & Steel or manufacturing any commodity. The Supreme Court in Commissioner of Customs (Preventive) vs. Vijay Dasarath Patel held that orders based on no evidence or ignoring material facts are liable to be set aside. The absence of a show cause notice rendered the imposition of tax procedurally flawed.

Conclusion:
The court allowed the revision, answering all three questions in favor of the Assessee and against the Revenue. The Tribunal's order dated 01.11.2008 was set aside, and the matter was remanded back to the Tribunal for reconsideration in accordance with the law, taking into account the points raised by the revisionist. The Tribunal was directed to decide the matter afresh within two months from the receipt of the certified copy of the order.

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