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TMI Blog1961 (12) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... on the dealer by the proviso to section 3(2) of the Act, was let in. Another part of the turnover of Rs. 61,782 was also in dispute. That part related to the stock of imported cloth held as on 13th December, 1957, in respect of which the dealers were given the option of compounding the additional tax. No applications for compounding had been made in conformity with the law. The request to compound was accordingly negatived and they were taxed as stated. In the appeal to the Appellate Assistant Commissioner, the principal ground that was advanced was that Government had waived the collection of the additional tax in respect of the sales from 1st April, 1957, to 17th December, 1957, and that in the light of this waiver, the tax should not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les Tax Act. the first sale of cloth of certain specified description is subject to the additional rate of tax of 8 per cent. of the turnover. This tax is additional to the general levy under section 3(1) of the Act. The proviso to section 3(2) lays down that in the case of goods imported into the State, the tax shall be levied on the first sale effected in the State of Madras by a dealer who is residing in the State of Madras. The burden of proving that the sale is not the first sale is also cast on the dealer. It is not in dispute that section 3(2) is applicable to the present case. Ordinance IV of 1957 was promulgated. Clause 3 of that Ordinance provided thus: "Notwithstanding anything contained in the 1939 Act and in the 1954 Act, any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter of a Bill before the Parliament and that inferentially, at any rate, till the Bill was passed and became law, the dealer need not make his application. We are unable to accept this contention. Whatever the quantum of the excise duty might be as finally laid down in the Bill, as passed and would become law, the right to compound is conditioned by the filing of the necessary application within, two weeks from the date of the commencement of the Ordinance. Since that condition was not complied with, the department rightly rejected the prayer to compound. The next contention is that the Government had waived the collection of additional sales tax under section 3(2). A copy of the order of the Government in this regard has not been filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all the officers of the department and the Tribunal as well have unanimously concluded that it was a collection of sales tax and nothing else. Assuming for a moment that the Tribunal could give effect to an executive instruction of the Government regarding the waiver of collection of sales tax, it is patent that in the present case the conditions pre-requisite to such waiver do not obtain. The dealer can get the benefit of this waiver only if he had not collected sales tax and that, as we have pointed out, is not the case here. We are in entire agreement with the Tribunal in the view that it took that it was not competent to give effect to the executive instructions. What the Government purported to do was only to waive the collection of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t an exemption from the incidence of the tax liability. What appears to have happened is that the order of the Government left the liability to pay tax unaffected, for the Government only stated that in respect of transactions during a certain period, they would not enforce the collection against a dealer if the dealer had not in fact collected the tax from his customers. That being the narrow extent of the scope of the waiver of the collection by the Government, the liability to tax of the dealer was left unaffected. The Tribunal had jurisdiction only to examine any exemption from liability to tax of a dealer under the provisions of the Act and if it declined to consider and apply the Government order which had been issued under the aboves ..... X X X X Extracts X X X X X X X X Extracts X X X X
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