9911796707
TMI Blog1993 (1) TMI 272X X X X Extracts X X X X X X X X Extracts X X X X ..... covery of the demands of sales tax can be taken against the petitioner-company because it is a sick industrial company and section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 [for short, "the SIC (SP) Act"], is applicable. A relief has also been claimed that because under the contract the sales tax was payable by the Public Health and Engineering Department, respondents Nos. 1 and 2 be directed to recover the tax, if any, from that department. 2.. The petitioner-company is engaged in the manufacture of asbestos cement pressure pipes which, inter alia, consist of cement and asbestos. There are three different entries under the RST Act under the notification dated March 8, 1988, which govern the rate of tax applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notifications. It will further be seen that entry No. 125 is in respect of general rates and it is residuary entry and the said rate is applicable for all goods that are not covered by any entry from serial Nos. 1 to 124. A look at the aforesaid table will further show that up to March 5, 1986, the rate of sales tax under entry No. 95 as well as under entry No. 115 was the same, i.e., 12 per cent. It will further be seen from the aforesaid table that from March 6, 1986 to March 7, 1988 the rate of tax under entry No. 95 was 13 per cent, under entry No. 115 it was 12 per cent. Thus, during the aforesaid period whereas the rate of tax was more on cement and articles made of cement, it was less by 1 per cent on the products of all sorts of asb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisional assessment at the rate applicable under entry No. 95, i.e., for articles of cement, and in doing so the petitioner-company was guided and controlled by the orders of provisional assessment passed by the respondents. 4.. Under section 12A of the RST Act power has been conferred on the Commissioner to determine the disputed question in respect of classification of goods also but a bare reading of section 12A of the RST Act will show that the disputed question/questions which can be determined by the Commissioner under the aforesaid section must arise otherwise than in proceedings before a court or under sections 7A, 7B, 10, 10A, 10B or 12. So far as the petitioner-company is concerned, as said earlier, there were provisional as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether the said products are falling under entry No. 95 or 115 and this question is again a question of fact. It is even the case of the petitioner-company, as will be seen from a perusal of para 14, page 7 of the writ petition that for the period from July 1, 1986 to June 30, 1987 while passing final order of assessment the respondent-department applied entry No. 115 and assessed tax on the said product for the aforesaid period at the rate applicable to asbestos products. However, the rate applicable to asbestos products during the said period was lower than the rate applicable for the articles made of cement and therefore no demand was raised for payment of additional amount. The final order of assessment was passed in 1991 and the said or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the learned counsel for the petitioner is also that the sales tax is payable by the Public Health and Engineering Department and the liability, if any, on the petitioner-company to pay sales tax should be passed on to the Public Health and Engineering Department and the said department alone should be asked to pay the dues. In my opinion, in the assessment proceedings the assessee and the sales tax department were parties and so far as the assessment order is concerned, it is bound to be against the assessee and the assessee has to make the payment and if under the contract the payment was to be made by the Public Health and Engineering Department or any other party, then the assessee will be entitled for reimbursement to that extent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tent therewith contained in any other law except the provisions of the Foreign Exchange Regulation Act, 1973 and the Urban Land (Ceiling and Regulation) Act, 1976, for the time being in force or in the Memorandum or Articles of Association of an industrial company or in any other instrument having effect by virtue of any law other than that Act. Section 22 of the SIC (SP) Act to which reference has already been made in the earlier part of this order, provides that where an inquiry under section 16 is pending or any scheme referred to under section 17 is under preparation or consideration or a sanctioned scheme is under implementation or where an appeal under section 25 relating to an industrial company is pending, then, notwithstanding anyt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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