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TMI Blog1995 (11) TMI 413X X X X Extracts X X X X X X X X Extracts X X X X ..... icant (M/s. B.R. Phosphate, Meghnagar) on its applications marked as annexures A-1 and A-2. 1.. Whether, under the facts and circumstances of the case, the Tribunal was justified in holding that the rock phosphate powder sold by the assessee is not a fertiliser and as such is liable to tax at 4 per cent and not at 2 per cent under section 3(a) of the Central Sales Tax Act, 1956? 2.. If the answer to question No. 1 was in favour of the assessee, whether on the facts and circumstances of the case, the Tribunal was justified in holding that the amount of surcharge leviable under section 7(b) of the Madhya Pradesh General Sales Tax Act, 1958 will be included while calculating the rate of tax under section 8(2-A) of the Central Act? 3.. Whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wever, remained absent and as such, an ex parte decision, adverse to the assessee, was passed on the merits (annexure C). The assessee then filed second appeal before the Board of Revenue. The Tribunal found that at every step the assessee behaved in a manner calculated to avoid payment of tax. It, therefore, issued notice for enhancement of penalty. The assessee contested the notice. The appeal was dismissed and the penalty was enhanced from Rs. 2,000 to Rs. 9,500. The adverse orders (annexures D/1 and D/2) were passed on June 30, 1984 and October 18, 1984. The assessee then filed the applications praying to the Tribunal to state the case and refer the questions. The Tribunal, on applications, stated the case and referred the questions as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Bengal [1955] 27 ITR 188. The learned Chief Justice speaking for the Bench held: "..........before the duty contemplated by the section to decide the questions of law referred can arise, a hearing of the case must take place, because the section opens with the words: 'The High Court upon the hearing of any such case', etc. Where the party, who has caused the reference to be made and who is in the position of a plaintiff, fails to appear, no hearing of the case can take place and in my view since the preliminary condition of the sub-section is not satisfied in such a case, the consequent obligation of deciding the questions of law and delivering a judgment does not also arise. It appears to me, therefore, that it is not required of us t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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