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TMI Blog1991 (8) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... te Assistant Commissioner disputing only the inclusion of the turnover of Rs. 1,42,054.47 representing the excise duty collected and the levy on Rs. 1,41,459 at the rate of 4 per cent and the balance of Rs. 995 at 9 per cent. The appellate authority found that a sum of Rs. 1,204 represented the excise duty collected on labour charges on the sales of synthetic stones. Inasmuch as exemption had been granted in respect of the turnover of synthetic stones, the excise duty collected on the labour charges on the sales of synthetic stones being Rs. 1,204 could not have been included. He therefore, deleted the sum of Rs. 1,204. He also reduced the penalty to an amount equivalent to the tax due on the escaped turnover, thus reducing the penalty to Rs. 5,665. He therefore, directed the turnover of Rs. 1,39,855 to be taxed at 4 per cent and the turnover of Rs. 995 to be taxed at 9 per cent. The petitioner filed a Second Appeal T.A. No. 7 of 1980, before the Tribunal. The Revenue filed a Miscellaneous Petition No. 306 of 1980 seeking to enhance the rate of tax applicable for the purchase value of ornaments at 4 per cent multi-point, as against a lower rate, adopted by the assessing authority a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of old jewellery taxable under section 7-A of the TNGST Act was not at all an issue before the authorities. It was not therefore open to the Revenue to call in question a turnover in respect of which the assessee did not file either a first appeal or second appeal. 4.. The first contention is easily answered because under the Madras General Sales Tax (Second Amendment) Act, 1969, the excise duty collections are certainly exigible to tax. The plea that at the time of collection of the excise duties there was a dispute pending in the High Court, cannot avail the petitioners. The fact remains that in law excise duty collections are taxable and in fact the assessee had paid over the same to the Central Excise Department. The fact also remains that the assessee did not disclose the turnover of Rs. 1,42,054.47 being the excise duty collections in his return. Therefore the power under section 16(1) of the TNGST Act was rightly exercised and the turnover was brought to tax. In this connection a reference may be made to the Madras General Sales Tax (Second Amendment) Act, 1969, which received the assent of the Governor on March 4, 1969, and which contains deeming provisions which the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 16(2) of the TNGST Act. We are in entire agreement with the views expressed by the authorities below and hold that the assessees had wilfully suppressed the turnover, consequently making themselves liable for penalty under section 16(2) of the TNGST Act. 6. So far as the last contention relating to the maintainability of the enhancement petition as well as the correctness of the claim made by the Revenue in the enhancement petition is concerned, we have necessarily got to deal with the contentions in two parts. We will first take up the question of maintainability. The argument is that the original assessment order under section 12 of the TNGST Act was made on April 18, 1979. The order under section 16 of the TNGST Act was made on June 27, 1979. The only difference between the two orders is with reference to the excise duty collections totalling Rs. 1,42,054.47. When the petitioners filed an appeal they challenged only the inclusion of the excise duty collections. Similarly, in the second appeal before the Tribunal also they challenged only the turnover relating to excise duty collections. Therefore enhancement petition relating to the purchase of old jewels from Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncement petition is merely by way of putting the assessee on notice that in the appeal preferred by the assessee the Revenue is going to request the Tribunal to enhance the assessment, so that the assessee may not be taken unaware if the Tribunal proceeds to concede the request of the Revenue and enhances the assessment." 7.. The next point which remains to be considered is whether while invoking section 16 of the Act and passing an order on June 27, 1979, the assessing authority had completely redone the assessment or whether he had only passed an order relating to the escaped turnover. We have already pointed out that in this case there is a composite order and the subject-matter of enhancement was also subject-matter of the assessment order dated June 27, 1979. In this connection, the Division Bench judgment of this Court in Writ Appeal Nos. 835 to 837 of 1988 dated February 27, 1991* is instructive. The Division Bench has clearly elucidated the different fields of operations of an order under section 16(1)(a) of the Act and an order under section 16(1)(b) of the Act. While *Reported as Joint Commercial Tax Officer v. Ekambareeswarar Coffee and Tea Works [1991] 83 STC 457 (Mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gued that what was purchased was not jewellery but only "bullion" or "specie". While there is absolutely no material to show that the jewellery purchased had been twisted and beaten out of shape, we are of the opinion that the issue is beyond controversy after the judgment of the Supreme Court in [1980] 45 STC 58 (Deputy Commissioner of Sales Tax v. G.S. Pai Co.). The apex Court has clearly pointed out that ornaments and other articles of gold cannot be regarded as "bullion", because even if old and antiquated, they are not raw or unwrought gold or gold in the mass, but they represent manufactured or finished products of gold. In common parlance, the Supreme Court points out, the word "specie" means any metallic coin which is used as currency. Therefore ornaments and other articles of gold cannot be described as "specie". The Supreme Court takes the issue beyond any controversy by observing that ornaments and other articles of gold purchased by the assessee with a view to melting them and making new ornaments, or other articles out of melted golds would not fall within the words of "bullion and specie". The findings of both the authorities below is that the assessee purchased old ..... X X X X Extracts X X X X X X X X Extracts X X X X
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