9911796707
TMI Blog1998 (12) TMI 573X X X X Extracts X X X X X X X X Extracts X X X X ..... rat Sales Tax Rules, 1970? 2.. Rule 42 of the Gujarat Sales Tax Rules envisages that in assessing the tax payable by a manufacturer, the Commissioner shall, subject to the general conditions of rule 47, and further conditions specified below, grant him drawback, set-off or as the case may be refund, of the whole or any part of the tax in respect of the purchases of goods used by him in manufacture. For operation of this rule the goods manufactured as well as goods purchased are to be taxable goods. 3.. Computation of drawback to which the assessee is entitled has been provided in clauses (A) and (B). Clause (B) is reproduced hereunder: (B) For the purchases of goods on or after the appointed day.-(i) In respect of the purchases ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce with clauses (A) and (B) above, shall be granted to the assessee after deducting herefrom, (i) two per cent of the purchase price of the goods considered for the grant of set-off under the above stated clauses (A) and (B); (ii) two per cent of the purchase price of the goods used in the goods manufactured by him and despatched to his own place of business or to his agent s place of business situate outside the State of Gujarat but within India, where he, or as the case may be, his agent is registered under the Central Sales Tax Act, 1956 (74 of 1956) and sold there, subject however that no such deduction shall be made where on the goods so purchased the assessee is liable to pay purchase tax under section 15B or section 15C of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd on such enhanced price, deduction of 2 per cent can be made for the purpose of reducing the aggregate amount of drawback, set-off and refund under clauses (A) and (B). 7.. The Tribunal has found against the assessee and in favour of the Revenue by holding that purchase price for the purpose of these provisions include purchase tax also. 8.. Having carefully considered the rival contentions, we are of the opinion that on a plain reading of provisions, the order of the Tribunal is erroneous. Rule itself does not define the term purchase price . For a purchaser, whatever price he pays to the vendor, different elements constituting price constitute purchase price. For vendor it may constitute of different elements, viz., his cost of pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t deduction is that sum as has been considered for computing the amount of set-off/drawback, refund under clauses (A) and (B), that is to say, what constitutes purchase price for the purpose of computing drawback, etc., for bringing out sales tax element in the purchase price borne by the assessee, must also be the purchase price for the purpose of reducing it by 2 per cent of that sum. The rule does not envisage different sums for the purpose of computing drawback under clauses (A) and (B) and for computing 2 per cent to be deducted from such aggregation for the purpose of clause (a) to proviso to clause (B). 10.. There is no room for assuming a notional grossed up price for inflating purchase price for the purpose of calculating 2 per c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact that he actually pass on the burden to his buyer, can only by way of adding it in the sale price and the entire consideration is to be considered as sale price. The court was not concerned with whether buyer s purchase price would be hypothetically increased by the tax liability, if any, to which he may be subjected to after he has purchased the goods. 13.. In the like manner, the Bombay High Court in National Plastic case [1995] 99 STC 10, was concerned with a situation where the dealer seeking benefit of like provisions sought to reduce his purchase price deducting therefrom the element of sales tax paid to his vendor so as to reduce the amount of deduction from the aggregate of eligible amount of drawback, set-off, refund. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
