9911796707
TMI Blog1999 (3) TMI 606X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessment orders passed under section 11(3) of the Assam (Sales of Petroleum and Petroleum Products including Motor Spirit and Lubricants) Taxation Act, 1955, for short the Taxation Act and Central Sales Tax Act, 1956. The assessment orders were initially challenged by BRPL by way of revision and as the order of revision passed by the Commissioner of Taxes was also the subject-matter of challenge in the writ petitions, vide common judgment and order dated March 8, 1996 [Bongaigaon Refinery Petrochemicals Limited v. Commissioner of Taxes, Assam [1996] 103 STC 132 (Gauhati)] the learned single Judge allowed the relief claimed by the writ petitioner in the above batch of writ petitions. Feeling aggrieved, the Commissioner of Taxes and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d retention prices for each products for each refinery and also fixed up an ex-factory price. The relevant observation reads as under: "Retention prices have been fixed for each products for each refinery by the OCC, based on the crude throughout standard pattern of production, delivered cost of crude oil, refinery cost and the appropriate return on capital employed. Whereas the refinery is entitled to retain its appropriate retention price for each product, they recover on their sale to the marketing companies on the basis of ex-refinery price, fixed by the Government for each product. The difference between the ex-refinery price, recovered by the refineries from the marketing companies and the retention price, which the refineries are e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice as fixed by OCC and the amount received from two sources is a part of the sale price and BRPL is liable to pay taxation on both the amounts, i.e., the amount received from the IOC against the bills raised by them and also on the amount received from OCC. There is no controversy or dispute that BRPL is paying the tax on the amount of the bill raised to IOC. 7.. In the impugned judgment the learned single Judge has dealt in detail the definition of sale , sale price and turnover as defined under the Taxation Act, 1955 and the Central Sales Tax Act, 1956. As per the agreement between the BRPL and IOC, the former is required to sell the refinery products at the price to be fixed by the Government of India. BRPL is thus not entitled t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... followed by the honourable Kerala High Court and Allahabad High Court. The learned single Judge also relied on the above decisions. The first submission of the learned counsel for the appellant before us is that for the period 1982-83 to 1987-88 the BRPL received a sum of Rs. 166 crores and odd from the OCC and in their balance sheet they have shown the receipt of the above amount under the heading Sale of goods purchased and as such the gross sales in respect of the goods were thus the combination of the amount received as sale price from the 10C and from OCC, being the difference between the ex-refinery price and retention price. Appellants have filed the annual report of BRPL for the year 1988-89 and for the year 1992-93. The learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their sale transaction is not dependent on whether OCC pays the difference to BRPL or not. It is not a case of receipt of consideration from more than one quarter source. 10.. Learned counsel for the appellant strenuously argued that the retention price of the refinery is the actual price which has been received by the BRPL for the goods sold by them and as such they are liable to pay taxes on the said retention prices. According to the appellants the retention price is nothing but the cost price as well as the profit of the unit and as the respondent is entitle to retain/receipt the entire retention price the difference received by BRPL from OCC should be termed as a part of sale price and not a subsidy. 11.. In this connection it may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly and/or the tax realised on the excess of Rs. 1,000 is refundable to BRPL. The learned counsel in their wisdom declined to commit, lest the State of Assam may be affected adversely. In spite of silence, the reply to the above query is a definite No . The dealer is bound to pay the taxes on the sale price and although he is not entitled to retain the entire sale price, he cannot claim concession or refund in respect of the tax due. This goes to show that the amount received by the BRPL from the oil pool account is nothing but a compensation/subsidy given by the Government in order to have a uniform price structure throughout the country. Likewise the amount paid by the manufacturer being the surplus of their retention price is their cont ..... X X X X Extracts X X X X X X X X Extracts X X X X
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