9911796707
TMI Blog1995 (12) TMI 350X X X X Extracts X X X X X X X X Extracts X X X X ..... our opinion: "(i) Under the facts and circumstances of the case, whether the Tribunal is justified in law in not going into the question of merits of 'felts' above 3 mm. thickness on the ground that the honourable Supreme Court has concluded the matter in the order passed under section 42-B by the Commissioner of Sales Tax? (ii) Under the facts and circumstances of the case, whether the Tribunal is justified in law in holding that the honourable Supreme Court has finally concluded on merits that felts above 3 mm. thickness did not satisfy the test of pliability and is, therefore, not exempt from tax under entry 6, Schedule I of the State Act? (iii) Under the facts and circumstances of the case, whether the Tribunal is right in refusin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut shall fall under entry 1 of Part VI of Schedule II and will thus be subjected to tax at 10 per cent. The earlier clarification of August 7, 1971, was accordingly superseded and cancelled. The assessments, both under the State and Central Acts, were made. The applicant filed revision. In the meantime on the application of the assessee the CST passed the orders under section 42-B of the State Act on January 25, 1983, in which the CST held that "pliability" and "use" will be the determining factors to ascertain as to whether the compressed woollen felts qualify for being called felt cloth. After examining 26 specimens of varying thickness, hardness and density, the CST held that compressed woollen felts up to 3 mm. thickness qualify the tes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicant, therefore, requested the Tribunal to go into the merits of the matter and to determine the question of pliability with regard to thickness. The Tribunal, however, did not go into this question and rejected all the four appeals by common order dated March 28, 1986 (annexure "E"). The applicant thereafter filed the applications seeking statements of cases and references. On the basis of the applications, the Tribunal referred the questions of law, as noted above. 3.. We have heard Shri S.C. Goyal, learned counsel for the applicantassessee and Shri S. Kulshreshtha, learned Additional Advocate-General for the non-applicant/department in all these four reference applications. 4.. Both the sides agree that questions Nos. (ii), (iii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods. (2) Any order passed by the Commissioner under sub-section (1) shall be binding on the authorities referred to in section 3 in all proceedings under the Act except appeals." 9.. It is thus clear that any order passed by the Commissioner under subsection (1) is made binding on the authorities referred to in section 3 in all proceedings under the Act except appeals. The implication is that the appellate authority is required to consider the question on the merits when presented before it despite any order passed by the Commissioner in terms of section 42-B of the State Act. 10.. Following AIR 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt and in conformity with the provisions of the law. 12.. We are thus satisfied that the Tribunal was not justified in law in not going into the merits of felts of above 3 mm. thickness. The Tribunal was required to consider the question and then decide the same one way or other in conformity with law. 13.. Ex consequenti, we answer the question No. (i) as noted above in the negative, i.e., against the Revenue and in favour of the assessee. In view of our answer to this question, as agreed, the answer to other three connected questions is not necessary. The matter shall be at large and the Tribunal shall consider and decide the question in conformity with law consistent with facts and consistent with provisions of law bearing in mind ..... X X X X Extracts X X X X X X X X Extracts X X X X
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