9911796707
TMI Blog1995 (7) TMI 419X X X X Extracts X X X X X X X X Extracts X X X X ..... ules ). By virtue of article 323-B of the Constitution of India, the present application is for all purposes one under articles 226/227 of the Constitution. The subject-matter is within the exclusive jurisdiction of this Tribunal, the jurisdiction of the High Court having been barred. 2.. Applicant No. 1, a partnership firm is a manufacturer of hosiery goods which are tax-free or non-taxable goods. It is a registered dealer under the 1941 Act. The hosiery goods are sold and marketed after packing the same in polythene packs and pitchboard boxes. No separate price is charged for the packing materials. Applicants claim that they are entitled to purchase these packing materials at concessional rate of tax on furnishing declaration in form XX ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and has misconstrued the provisions of section 5(1)(bb)(i). Hence, this application for quashing the impugned order dated April 28, 1995 and for directing the respondents to issue declaration forms for purchase of packing materials and generator. 3.. As the matter involved simply a question of law, namely, the true interpretation of section 5(1)(bb) of the 1941 Act and rule 27A of the 1941 Rules, with the consent of both the parties the application was finally heard on July 12, 1995 without exchange of affidavits. However, written arguments were allowed to be filed on July 17, 1995, and such written arguments were filed on behalf of both the parties on that date. 4.. It is undisputed that hosiery goods, namely, Genzi manufactured an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to a registered dealer of containers and other materials for the packing of goods which are intended for use by him in the packing in West Bengal of taxable goods, .......manufactured by him in West Bengal for sale,............... by him in West Bengal. Explanation.-For the purposes of sub-clause (i) and sub-clause (ii) the expression- (a) taxable goods means and includes goods, other than those which are tax-free under sub-clause (i) of clause (a) of sub-section (2), and (b) .............................. It may be mentioned here that under section 5(2)(a), sale of goods declared tax-free under section 6 is to be deducted from taxable turnover for the purpose of levy of tax. Under section 6 of the 1941 Act tax-free goods are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulars and evidence including the copy of the relevant cash memo, or bill, according as the sale is a cash sale or a sale on credit, and a declaration in form XXIVA obtainable, subject to the provisions of rule 27AA, by the purchasing dealer or undertaking on application from the assessing authority or the authority referred to in the proviso to subrule (1) of rule 27AA, as the case may be, and duly filled in and signed by the purchasing dealer.................., stating, inter alia, (a) in the case of a sale referred to in sub-clause (i) of the said clause (bb), that the goods in question are of the class or classes specified in the certificate of registration of the purchasing dealer and are intended for use by him directly in the manufa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of only taxable goods in West Bengal for sale by the purchasing dealer, but according to him, the second part of the aforesaid provisions relating to packing materials is not confined to only taxable goods, but is wide enough to include packing materials for manufacture of tax-free goods also. Mr. Bhattacharya, therefore, submitted by necessary implication that under section 5(1)(bb)(i) (first part of it), applicants are not entitled to concessional rate of tax at the time of purchase of goods required for direct use in the manufacture of non-taxable or tax-free goods for sale. It can be well presumed that, for that reason, the prayer for issuance of declaration form for purchase of a generator was not pressed at the hearing. But Mr. D.K. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is to allow the concessional rate only to purchasing manufacturing dealers who will subsequently pay tax on the manufactured goods. Therefore, even under clause (ii) of section 5(1)(bb), the concession is available to a dealer who will use the packing materials for packing taxable goods manufactured by him in West Bengal. In any case, the second part of clause (i) of section 5(1)(bb) which is resorted to by the applicants should be interpreted with particular reference to the expression- so specified . The second part reads- and of containers and other materials for the packing of goods of the class or classes so specified . In my opinion, it makes no difference if the word- and -appearing in the beginning of the second part of section 5( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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