9911796707
TMI Blog2001 (4) TMI 890X X X X Extracts X X X X X X X X Extracts X X X X ..... writ reads as under: Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods. (2) Any order passed by the Commissioner under sub-section (1) shall be binding on the authorities referred to in section 3 in all proceedings under the Act except appeals." 3.. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4). 5.. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes: 6.. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of power or tractor. 5. Pumping sets and spare parts and accessories thereof. SCHEDULE II (PART III) 9. All machineries or machines worked by electricity, diesel, or petrol and spare parts and accessories thereof but excluding tractors and pumping sets as specified in entry 12 of Part IV and agricultural machinery and accessories, implements and parts thereof. 9.. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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