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TMI Blog1987 (2) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee moved an application under section 35 of the U.P. Sales Tax Act (hereinafter called the Act) before the Commissioner, Sales Tax, for his opinion on certain points. The said points included as to whether the job of repairing and refilling of cotton bowl and the process involved therein amounts to "manufacture" or "sale" within the meaning of the aforesaid Act. The Commissioner of Sales Tax, vide his order dated 19th June, 1985, decided both the questions against the assessee. Aggrieved against the same, the assessee preferred an appeal before the Sales Tax Tribunal. The Sales Tax Tribunal, vide its order dated 14th November, 1985, allowed the appeal in part. The Tribunal held that the process of repairing and refilling of cotton b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ociation of persons, society, club, firm, company, corporation, undertaking or Government department is a dealer; or (b) any particular thing done to any goods amounts to or results in the manufacture of goods within the meaning of that term; or (c) any transaction is a sale or purchase and, if so, the sale or purchase price, as the case may be, therefor; or (d) any particular dealer is required to obtain, or to apply for the renewal of registration; or (e) any tax is payable in respect of any particular sale or purchase and, if so, the rate thereof, the person or the dealer concerned may, after depositing the fee specified in section 32, submit an application to the Commissioner of Sales Tax, along with such documents as may be pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 9 shall be heard and disposed of- (i) by a bench of two members, where such order is passed by a Deputy Commissioner (Appeals) or the amount of tax, fee or penalty in dispute exceeds ten thousand rupees; (ii) by a single member in any other case. (b) An appeal against an order passed under section 10B shall be heard and disposed of by a bench of two members. (c) An appeal against an order passed under section 35, which shall be filed before the President, shall be heard and disposed of by a bench of three members. .........................................." In order to find out as to what is the meaning to be attributed to the words "shall be final" as occurring in sub-clause (5) of section 35 of the Act, one has to look to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner enters into determination of the disputed questions. Sub-clause (2) of section 35 of the Act enjoins on the Commissioner to decide the questions referred to him as he deems fit after giving the applicant an opportunity of being heard. Under sub-clause (5) of section 35 it has been stated that a decision given by the Commissioner of Sales Tax shall, subject to an appeal to the Tribunal, be final. When we come back to the appeal to the Tribunal, we find that in regard to an appeal against an order passed under section 35, the appeal is to be heard and disposed of by a bench of three members, although in regard to other appeals before the Tribunal they can be disposed of even by a single member or by a bench consisting of two mem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 35 no further dispute can be raised before him but this will not debar the other authorities under the Act from deciding the controversy before it on its own. In other words, the order passed by the Commissioner of Sales Tax under section 35 is not binding on the Sales Tax Officer or the Assistant Commissioner (Judicial) while exercising quasi-judicial functions. The argument raised on behalf of the other side is that if the provisions of subclause (2) of section 35 are taken into account which lays down that while passing an order under section 35 the Commissioner of Sales Tax shall, after giving the applicant an opportunity of being heard, decide as he deems fit, this in itself indicates that the proceedings before the Commissioner are no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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