9911796707
TMI Blog2000 (1) TMI 949X X X X Extracts X X X X X X X X Extracts X X X X ..... discarded railway wagons from the railways which are taxable on sale to consumer under entry No. 32 of a notification dated September 7, 1981. The said entry provides for tax in respect of old, discarded, unserviceable or obsolete machinery, stores or vehicles including waste products except cinder, coal ash and such items as are included in any other notification issued under the Act. If a registered dealer purchases such goods not for consumption but for resale in the same form and condition, he can postpone the tax liability till the goods are sold to a consumer by furnishing to the selling dealer a declaration in form III-A which requires the registered dealer to certify that the goods have been purchased for sale in the same form and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... III-A. The assessing officer, therefore, required the assessee to explain why a sum of Rs. 26,944 for the assessment year 1985-86 and of Rs. 1,40,000 for the assessment year 1983-84 be not levied under section 3-B of the Act. The case of the petitioner is that what is purchased from the railways were old and discarded railway wagons and they were sold in the same condition in which they were purchased and, therefore, it rightly issued form III-A and no amount can be levied under section 3-B of the Act. It is also claimed that earlier the Commissioner had issued a circular stating that purchase of old railway wagons from the railways is liable to tax under the aforesaid entry at the point of sale to the consumer and the Revenue cannot take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the petitioner is not a consumer and has not consumed the goods. It has, on the other hand, admittedly sold the goods to other parties. It is also not alleged that after the purchase of the goods, the petitioner in any way changed their condition. What is alleged is that what was purchased was iron scraps and what was sold was also iron scraps and, therefore, form III-A was wrongly issued. If what the Revenue says is correct, then by mere issue of form III-A, tax could not cease to be levied on the railways when they sold the alleged iron scrap to the petitioner because iron and steel scrap is taxable on sale by a manufacturer or importer and the railway is admittedly to be the manufacturer of the alleged scraps. If tax has not been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Commissioner, again after consultation with the law department, instructed that for removing the excluded items, the coaches are dismantled and, therefore, the sale of the resultant goods would in fact be treated as a sale of scrap. Whether after the exclusion of the 35 items what remains is a discarded wagon or coach or is an iron and steel scrap depends on the condition of the wagon or coach that is brought about after the removal of the aforesaid items and is a question of fact that will have to be determined in each case. In the present case, the assessing officer merely refers to the bills which have been issued by the petitioner in which it is alleged that what was sold was iron and steel scrap. It does not refer to the bills i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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