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TMI Blog1989 (9) TMI 377X X X X Extracts X X X X X X X X Extracts X X X X ..... 14 and 15 of the Central Sales Tax Act, 1956 and in view of the notification issued under section 11(2) of the Bihar Finance Act, 1981, the petitioners having paid tax on purchase of coal were not liable to pay any further tax on hard coke manufactured by them. 4.. The learned counsel, in this connection, has referred to a Division Bench decision of this Court in Anil Hard Coke Industries v. State of Bihar reported in [1988] 71 STC 322. The learned counsel further submitted that in any event, in the instant case, the question of concealment of income does not arise as the petitioners have shown amount of sale in their return and the question as to whether sales tax would be chargeable in terms of the Bihar Finance Act or the Central Sales Tax Act does not amount to any concealment so as to attract the provisions of section 20(1) of the Bihar Finance Act. 5.. The learned counsel further submitted that in the instant case, there was no mens rea on the part of the petitioners, and as such no penalty could have been imposed upon them. 6.. The learned counsel, in this connection, has placed heavy reliance on Hindustan Steel Ltd. v. State of Orissa [1970] 25 STC 211 (SC), Cement M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed is justified in view of the fact that the petitioners did not submit the books of account before the respondent No. 3. 14.. In view of the Division Bench decision of this Court in Anil Hard Coke Industries v. State of Bihar [1988] 71 STC 322, there cannot be any doubt, whatsoever, that in terms of the Notifications dated December 26, 1977, issued by the State of Bihar under sections 11 and 12(2) of the Bihar Finance Act, 1981, that coal includes hard coke. There is also no doubt, whatsoever, that once a tax on purchase of coal is paid no further sales tax is payable on coke in respect of an intrastate sale. 15.. However, in Anil Hard Coke Industries' case [1988] 71 STC 322, the Division Bench has not laid down any law as to what would happen in respect of an inter-State sale. 16.. Before proceeding further, the relevant provisions of the Central Sales Tax Act, namely, sections 3, 6, 6A, 8, 9, 14 and 15 be considered. 17.. Section 3 of the Central Sales Tax Act, provides as to when a sale or purchase of goods can be said to take place in the course of inter-State trade or commerce, and in terms of the aforementioned provision a sale or purchase of goods shall be deemed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he sale or purchase inside the State of any declared goods and such goods are sold in the course of inter-State trade or commerce, and tax has been paid under this Act in respect of the sale of such goods in the course of inter-State trade or commerce, the tax levied under such law shall be reimbursed to the person making such sale in the course of inter-State trade or commerce in such manner and subject to such conditions as may be provided in any law in force in that State. (c) where a tax has been levied under that law in respect of the sale or purchase inside the State of any paddy referred to in sub-clause (i) of clause (i) of section 14, the tax leviable on rice procured out of such paddy shall be reduced by the amount of tax levied on such paddy. (d) each of the pulses referred to in clause (vi-a) of section 14, whether whole or separated, and whether with or without husk, shall be treated as a single commodity for the purposes of levy of tax under that law." 22.. From a perusal of the section 15(b) of the said Act, it appears that the said provisions provide for reimbursement to the person making a sale in the course of inter-State trade or commerce, to the extent of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion in form "C" had been issued or not. 29.. In this view of the matter, there cannot be any doubt that the dealers are not absolved from filing a true and correct return both under the Bihar Finance Act, 1981 and also under the Central Sales Tax Act, 1956, so as to enable the assessing authority to come to a conclusion as to what extent the dealer is liable to be reimbursed in case of an inter-State transaction of sale. 30.. In the instant case, despite notices, the dealers have not produced their books of account. It may be that if the books of account had been produced, it would have been possible for the assessee to show that the transactions in question, despite issuance of road permits in the prescribed form, do not involve inter-State sales but only intrastate sales. It is also, true, as has been submitted by Sri Rajgharia, that the assessing authority need not impose penalty only because it is lawful to do so. 31.. However, it may be mentioned that recently, the Supreme Court in Gujarat Travancore Agency, Cochin v. Commissioner of Income-tax [1989] 177 ITR 455; [1989] 3 SCC 52; AIR 1989 SC 1671, held that mens rea is not always necessary to be proved before an order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tobago v. Gordon Grant Co. [1935] AC 532 and Secretary of State v. Mask Co. AIR 1940 PC 105. It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was, therefore, justified in dismissing the writ petitions in limine." 35.. Recently the Supreme Court again in Vijay Prakash D. Mehta and Jawahar D. Mehta v. Collector of Customs (Preventive), Bombay AIR 1988 SC 2010 at 2012 held that the right to prefer an appeal may be hedged by conditions. Taking thus into consideration the facts and circumstances of the case, particularly, in view of the fact that the petitioners did not produce their books of account before the assessing authority, we are not inclined to entertain these writ applications, and observe that the petitioners, if they are so advised may take recourse to the alternative remedy provided for under the Act itself. 36.. In this view of the matter, in our opinion, it is not necessary to discuss other points raised at the Bar. 37.. These applications are dismissed at this stage. However, in the facts and circumstances of these cases, there will be no order as to costs. Writ petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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