9911796707
TMI Blog1976 (5) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... of the contracts the petitioner placed the indents with the foreign parties indicating the names of the parties for whom the goods were imported together with their purchase order references, import licences, etc. According to the contracts, the petitioner states, the goods were to be manufactured in West Germany as per the specification. After verification and inspection by the representatives of the said D.G.S. D. and the Indian Railways the inspection certificates were issued. It is not necessary to refer in detail, for the purpose of this application, to the other terms and conditions of the said contracts. The petitioner in the course of the assessment proceedings for the period 4 quarters ending 30th September, 1964, claimed before the Commercial Tax Officer, exemption under section 27(1)(a)(ii) of the said Act being the sales made in the course of import as the movement of the goods under the contracts was as a result of the covenant or incidental to the contracts of sales. For the aforesaid assessment period 4 quarters ending 30th September, 1964, the petitioner claimed under section 27(1)(a)(ii) of the said Act, the sum of Rs. 50,11,639.88 being the sales effected in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. (P.) Ltd.[1966] 17 S.T.C. 473 (S.C.). and the petitioner was entitled to the exemption claimed for sales in the course of import. The said Assistant Commissioner rejected the sum of Rs. 7,570.12 on the ground that the names of the import licensees were not indicated on the indents placed by the petitioner with the exporter in West Germany. The Assistant Commissioner observed, inter alia, as follows "It is submitted that the learned Commercial Tax Officer erred in ignoring the submission of the petitioner that the above sales were not taxable in view of the clear decision of the Supreme Court in the case of K.G. Khosla Co. (P.) Ltd. v. Deputy Commissioner of Commercial Taxes, Madras Division, Madras[1966] 17 S.T.C. 473 (S.C.). It is submitted that instead of looking into the evidence, indents, import licences, etc., the learned Commercial Tax Officer simply observed that the petitioner's claim for exemption was not identical with the facts of the case decided by the Supreme Court. It is submitted that in the contract there is a stipulation as to the import of the goods from the overseas and in pursuant to the said contract the petitioner placed indents with the foreign firm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he indent placed by the petitioner with the exporter in West Germany. It is submitted that the goods were imported under actual user's licence No. G/AU/1000689/C/XX/18/C/H/17 dated 21st October, 1963, issued in favour of Durgapur Steel Plant. If the learned Assistant Commissioner is satisfied that the sales were effected in the course of import and the facts and circumstances were akin to those in the case of K. G. Khosla Company (P.) Ltd. v. Deputy Commissioner of Commercial Taxes[1966] 17 S.T.C. 473 (S.C.)., the mere omission to indicate the name of the licensee on the indent placed with the exporter in West Germany was a matter of no consequence. The impugned appellate order will hence be set aside with direction to the learned Assistant Commissioner to pass fresh order in accordance with law after verifying the details of the sales said to have been effected in the course of import." Thereafter, the matter came up before the Assistant Commissioner pursuant to the aforesaid direction of the Additional Commissioner referred to hereinbefore and he issued the impugned notice on 23rd July, 1974. The said notice reads as follows: "Kindly refer to your appeal case relating to yo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. Clause (b) of sub-section (3) of section 20 states that subject to such rules as may be prescribed and for reasons to be recorded in writing, the Commissioner may, upon application, revise any order other than an order referred to in clause (c) and an order against which an appeal lies. Clause (c) of sub-section (3) of section 20 authorises the Tribunal to revise any appellate or revisional order passed in the matter of assessment. Sub-section (5) of section 20 authorises the Commissioner, before any order is passed under this section which is likely to affect a person adversely, to pass the order giving reasonable opportunity to such person of being heard. It is clear from the scheme of the different sub-sections referred to hereinbefore that the Commissioner may, on his own motion, revise an order passed by the officers subordinate to him. But before he passes an order affecting any person prejudicially he must give the person concerned an opportunity of being heard. It has further to be borne in mind that in passing an order on his own motion, the Commissioner is enjoined to record his reasons for so doing. It appears to me that the Commissioner cannot, in an application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1970] 26 S.T.C. 489. That decision has been affirmed by the Supreme Court on 23rd April, 1976, and subsequently reported in Ram Kanai Jamini Ranjan Pal Pvt. Ltd. v. Member, Board of Revenue, West Bengal[1976] 38 S.T.C. 1 (S.C.); A.I.R. 1976 S.C. 1545. The facts of that case, however, were different. There though the Commissioner was dealing with a revisional application before him made by the party aggrieved, there were subsequent enquiries and the Commissioner gave notice that he would take into consideration the subsequent enquiry and asked the party to show cause. It was similar to the Commissioner exercising power suo motu, but, as the revision application of the party was pending he proceeded on that application. Having regard to the facts of the instant case before me it appears to me that where sales representing Rs. 49,82,246.90 were involved, the petitioner was entitled to exemption in view of the order of the Assistant Commissioner of Commercial Taxes who held in favour of the dealer in respect of which the dealer did not move the Commissioner in revision, and the Commissioner did not also give any such notice, the Commissioner was not competent in passing an order in rev ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
