9911796707
TMI Blog2001 (3) TMI 1003X X X X Extracts X X X X X X X X Extracts X X X X ..... i.e., cotton seeds used for manufacturing the oil. 2.. The petitioner is registered as a dealer under the Haryana General Sales Tax Act, 1973 (for short, "the Act"). It is engaged in the manufacture of oil from cotton seeds purchased after paying tax at the first stage of sale. By an order dated March 16, 1998 the Deputy Excise and Taxation Commissioner-cum-Assessing Authority, Sirsa finalised the assessment for the assessment year 1993-94 and allowed proportionate rebate under rule 24-A of the Haryana General Sales Tax Rules, 1975 (for short, "the Rules") instead of granting full rebate on the tax paid on the cotton seeds. The appeals filed by the petitioner under section 39(1) and (2) of the Act against the order of assessment were dism ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lour Mills and submitted that after having accepted the applicability of the ratio of the Supreme Court's decision in a similar case, the Tribunal could not have denied relief to the petitioner. 6.. Shri Jaswant Singh, Deputy Advocate-General, Haryana, conceded that the order passed by the Tribunal in the case of Jyoti Luxman Roller Flour Mills is mainly based on the decision of the Supreme Court in the case of Bharat Petroleum Corporation Ltd. [1992] 85 STC 220 and that there is no difference between the case of the petitioner and that of Jyoti Luxman Roller Flour Mills. He however, tried to defend the order passed by the Tribunal by arguing that "khal" cannot be treated as a by-product of oil manufactured by the petitioner from cotton s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court reported in Commissioner of Sales Tax v. Bharat Petroleum Corporation Ltd. [1992] 85 STC 220 at page 231 which reads as under: 'Turning now to the main question, we are inclined to agree with respondents' counsel that they are entitled to a set-off of the entire tax paid by them on the purchases of sulphuric acid and cotton, respectively. The only condition under the rule is that the goods purchased on payment of tax should have been used in the manufacture of taxable goods for sale. Their concurrent user for the manufacture of another item of goods which may or may not be taxable is immaterial....' Obviously, the aforesaid judgment of the honourable Supreme Court which was otherwise relied upon by the Tribunal in the impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance by the counsel upon [1994] 94 STC 98 (P&H) (Jagraon Co-operative Sugar Mills Ltd. v. State of Punjab) cannot be of any use to the appellants. In support of the contention for total rebate under rule 24-A the counsel have referred to [1992] 85 STC 220 (SC) (Commissioner of Sales Tax, Bombay v. Bharat Petroleum Corporation Ltd.). A careful perusal of the judgment clearly reveals that Haryana provisions which were inserted in the form of rules 24A and 24B came much after the aforesaid judgment was delivered by the apex Court. Besides, the counsel could not establish similarity between the provisions interpreted by the honourable apex Court and those contained in Haryana Rules (rules 24A and 24B) as stressed by the departmental represent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ording his rebuttal the learned counsel could not show in a convincing way as to why the aforesaid decision was not applicable to the appeals being defended by him. The respondent-counsel clinches the issue in favour of revenue. The impugned orders do not call for any interference. Accordingly, appeals are rejected." 10.. In our opinion, the two orders passed by the Tribunal are per se contradictory and ex facie discriminatory and, therefore, the only proper course is to quash the impugned order with a direction to the Tribunal to decide the petitioner's appeals afresh keeping in view the decision of the Supreme Court in Commissioner of Sales Tax v. Bharat Petroleum Corporation Ltd. [1992] 85 STC 220, the relevant extract of which is re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that when a receipt is a composite one of capital and revenue nature, it is open to the Revenue to apportion the same and bring the latter to tax. These are situations in which the taxable element is severable. Under the rules presently under consideration also, situations are conceivable where such severance is implicit. For instance, suppose the cotton purchased is utilised partly for manufacture of cloth that is taxable and partly for manufacture of cloth that is not taxable or partly for the manufacture of yarn which is taxable and is sold and partly for manufacture of cloth which is not taxable. In these instances, it is clear that only some of the cotton is utilised for the first purpose and some for the second purpose and so ..... X X X X Extracts X X X X X X X X Extracts X X X X
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