9911796707
TMI Blog2001 (5) TMI 926X X X X Extracts X X X X X X X X Extracts X X X X ..... Sales Tax Act, 1993 (for short, "the Act"). The appellant Co., is engaged in the business of sale and supply of petroleum products inside the State of Assam as well as outside the State. The appellant Co., purchases various petroleum products from Bongaigaon Refinery and Petrochemicals Ltd. (for short, "BRPL") on payment of sales tax. Prices of petroleum products are fixed by the Government of India on the basis of prices worked out on the recommendation of Oil Pricing Committee, set up by the Ministry of Petroleum, vide Resolution No. J-11011/8/72-PPD, dated March 16, 1974. The recommendation of the Oil Pricing Committee was adopted by the Government, which requires a dealer to sell its products at the prices fixed by the Central Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s"). 3.. The appellant Co., has prepared a chart, which shows the purchase price and sale price of various products dealt by the appellant Co., and the amount of surcharge to be collected by the appellant Co., on behalf of the Central Government. The chart prepared and submitted by the appellant Co., is shown below, which will explain the position. Products Purchase price Ex REF price Sale price w.e.f 1.3.94 Amount to be surrendered to Pool A/c. Sale price upto 1.3.94 Amount to be surrendered to Pool A/c. ATF 3,245.38 10,886.71 7,463.56 10,886.71 7,463.36 HSD 2,552.66 6,311.70 3,620.20 5,561.70 3,123.99 MS 4,263.76 15,480.22 10,990.56 14,480.22 10,155.54 FC 1,967.33 5,008.75 2,901.24 5,008.75 2,901.24 SKO 2,287.00 2,212.54 Nil 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appellant Co., though liable to pay tax on the sale of products purchased from BRPL being selling agent as per section 8(1)(a) of the Assam General Sales Tax Act, 1993 read with rule 12 of the Assam General Sales Tax Rules, 1993. Being aggrieved, the appellant Co., has preferred Civil Rule No. 1939 of 1996, which was dismissed on November 2, 1998. Hence, the present appeal. 6.. We have heard Dr. A.K. Saraf, learned counsel for the appellant as well as Mr. G.N. Sahewalla, learned counsel for the respondents. 7.. It is contended by Dr. Saraf that the total price at which the goods are to be sold by the appellant Co., was fixed by the Government of India and the appellant Co., has to collect a fixed amount as surcharge on each sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assam General Sales Tax Act, 1993, reads: "8. Charge of tax and rates.-(1) The tax leviable under section 7 for any year shall be charged on the taxable turnover during such year- (a) in respect of goods specified in Schedule II at the first point of sale within the State, at the rate or rates specified in that Schedule. Explanation.-Where a person sells a substantial part of the goods manufactured by him or imported by him to another person for sale under the brand name of such other person or for resale as distribution or selling agent or for resale after repacking or subjecting the goods to any other process not amounting to manufacture and the price charged on resale exceeds the sale price by more than such percentage as may be p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount collected by the appellant Co., as surcharge on behalf of the Central Government to be contributed to the Oil Pool Account is excluded, the difference between the purchase price of the products of the appellant Co., and the selling price of the products will be below the prescribed forty percentum and in that view, the explanation to section 8(1)(a) of the Act will not be attracted. We are not at all impressed by this submission because the surcharge collected by the appellant Co., on behalf of the Central Government and contributed to the Oil Pool Account, as stated, is not within the provision of the Act. An executive instruction on the basis of which the appellant Co., collects the surcharge on behalf of the Central Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such cost or interest is separately charged, subject to such conditions and restrictions as may be prescribed, and (ii) any sum allowed as a cash discount according to ordinary trade practice: Provided that in a case where there is no bill of sale or the sale bill is, in the opinion of the assessing authority, for an amount substantially lower than the market price of the goods, the valuable consideration receivable by the dealer shall be taken to be the market price determined in the prescribed manner. Explanation-1. Any tax, cess or duty which is liable to be paid in respect of any goods before the buyer can obtain delivery and possession of such goods and all costs, expenses and charges incurred before the goods are put in a delive ..... X X X X Extracts X X X X X X X X Extracts X X X X
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