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TMI Blog2013 (4) TMI 676X X X X Extracts X X X X X X X X Extracts X X X X ..... the authorities and succeeded in the same. Department aggrieved by the order file the appeal before the High Court. Since none appeared for the respondent/assessee despite repeated notices sent to them in last more than 15 years. Court do not wish to keep this reference pending anymore. Held that:- Having heard the learned counsel for the State and on perusal of the record of the case (statement of case), court are inclined to answer the referred question in negative i.e. against the Revenue and in favour of the assessee. - STR No 201 & 202 of 1997 - - - Dated:- 24-7-2012 - MR ABHAY MANOHAR SAPRE MR G. MINHAJUDDIN JJ. Mr Vinay Harit Dy Advocate General for the State in both the STRs ORDER The following order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter called "The Act"). The A.O. while making the assessment applied the rate of 12% applicable to residuary items under the schedule for this item to determine the tax liability of the respondent (assessee/dealer) and accordingly framed the assessment. The respondent felt aggrieved of this assessment order filed appeal to Commissioner of Sales Tax (Appeals). The case of the respondent before the CST (Appeal) was that the item in question is in fact "iron and steel" and hence liable to be taxed accordingly at the rate of 4% in place of 12% as wrongly assessed by the assessing officer under the residuary clause of the Schedule. The CST (Appeal) found substance in the contention of the respondent and while allowing the respondent's appeal a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ands of dealer /assessee by means of process of manufacture before its dispatch to NPCC by the assessee thereby loosing its original identity out of which it was made (iron and steel) and hence it was liable to be taxed at the rate of 12 % as an commodity falling in the residuary entry as specified in the Schedule appended to the Act and not under the entry of iron and steel. 7. None appeared for the respondent/assessee despite repeated notices sent to them in last more than 15 years. The process server report revealed that place of the respondent business is closed and hence it is not possible to serve them at the address mentioned in the notice. No other address is available in the record for sending notice of this reference. Since mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary for the revenue to have at least brought on record clinching evidence in support of their case. It was not done and nor there was any factual finding to support it. On the other hand, the factual finding is that it did not undergo any manufacturing process and while selling the commodity by name "drift eliminator", the iron, angle irons and steel were used for moulding them to give shape and in this process the commodity did not loose its original identity in any respect. 12. In the light of this admitted position emerging from the record of the case, and keeping in the view the factual finding of the authorities below on this vital issue, and further in the absence of any kind of oral or documentary evidence not being brought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e confined as being binding only on the assessee of this case for taxing purpose and hence our decision rendered should be treated as the "judgment in persona" and not "judgment in rem" so far as the interpretation of commodity in question is concerned. 16. In the light of foregoing discussion, we answer the question by saying that Board of Revenue was justified in holding that the commodity in question known as "drift eliminator" was liable to be taxed at the rate of 4% meant for taxing "iron and steel" as specified under the Schedule and that conversion of angle iron into a steel structure does not amount to manufacture so as to attract the tax liability at the rate of 12% as specified for residuary entry. 17. The original order shall ..... X X X X Extracts X X X X X X X X Extracts X X X X
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