9911796707
TMI Blog1997 (11) TMI 512X X X X Extracts X X X X X X X X Extracts X X X X ..... on No. F. 4(8) FD/Gr. IV/94-57 dated March 7, 1994 issued under section 4(2) of the Rajasthan Sales Tax Act, 1954 (in short, "the 1954 Act"). After issuance of the Notification No. F. 4(69)/FD/Tax/Division/ 94-95 dated March 15, 1996 issued under section 15, Rajasthan Sales Tax Act, 1994 (in short, "the 1994 Act"), superseding the Notification dated March 7, 1994, oil-seeds were purchased after paying tax at the rate of 2 per cent for manufacturing edible/non-edible oil on furnishing forms ST-17. On April 12, 1996, the Commercial Taxes Officer, Anti-Evasion-II, Jaipur (respondent No. 2) surveyed the business premises of the petitioner and collected detailed information regarding purchase of oil-seeds. On the ground that hydrogenated vegetable oil is not edible oil within the meaning of the said notification dated March 7, 1994 the respondent No. 2 issued notices under sections 7B, 11B, 16(1)(i) and (e) of 1954 Act and under sections 28, 58 and 65 of 1994 Act for both the years. In compliance thereof, the petitioner's representative Sri J.K. Jain, advocate appeared before the respondent No. 2. The cases were lastly adjourned to May 31, 1996. The petitioner's Managing Director, B.S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Rajasthan or in the course of inter-State sale but utilised it for manufacturing hydrogenated vegetable oil against the terms and conditions of the said notifications dated March 7, 1994 and March 15, 1996 and tax, interest and penalty have rightly been imposed. Detailed notices (annexure-R1) (in both the cases) were issued to the petitioner and several opportunities of hearing had been given. It did not co-operate in the disposal of the cases. Accordingly, best judgment assessments had to be passed. The petitioner was not acting bona fidely. It was continuously violating the provisions of law. It wanted to delay the disposal of the cases. Adjournment applications were received on June 1, 1996 after 2.00 p.m 5.. In the rejoinder, the petitioner has reiterated all the averments made in the original applications. It has further been averred that the dispute involves substantial questions of the law, the preliminary objections have no substance, edible oil has neither been defined in the Act nor in any notification, principles of natural justice have been violated, the respondent No. 2 has no jurisdiction to pass the impugne assessments dated May 31, 1996 and orders dated August ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 49 F. 4(7)FD/Gr. IV/92-70 dated 4.3.92 He relied upon Rafiq v. Munshilal AIR 1981 SC 1400, 869 51 Tungabhadra Industries Ltd. v. Commercial Taxes Officer [1960] 11 STC 827 (SC), Commissioner of Sales Tax v. Prag Ice and Oil Mills [1991] 80 STC 403 (SC); Collector of Central Excise v. Jayant Oil Mills Pvt. Ltd.AIR 1989 SC 1316; (1989) 40 ELT 287 (SC), Khurjawala Buckles Manufacturing Co. v. Commissioner of Sales Tax [1965] 16 STC 778 (All.), Hindustan Steel Ltd. v. State of Orissa [1970] 25 STC 211 (SC), Commissioner of Income-tax v. Anwar Ali [1970] 76 ITR 696 (SC), Kathiresan Yarn Stores v. State of Tamil Nadu[1978] 42 STC 121 (Mad.)[FB], Assistant Commercial Taxes Officer v. Kumawat Udhyog[1995] 97 STC 238 (Raj), Dechem Plastics Private Limited v. Commercial Taxes Officer[1997] 107 STC 50 (RTT), J.K. Synthetics Ltd. v. Commercial Taxes Officer and Birla Cement Works v. State of Rajasthan[1994] 94 STC 422 (SC) and Frick India Limited v. State of Haryana[1994] 95 STC 188 (SC). 7.. The learned counsel for the department contended thus. The original applications are not maintainable as final assessment orders have been passed. Original appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t item it is exempt from sales tax and there is no jurisdiction in the sales tax authorities to assess the appellant on its turnover. The question is one of substantial importance, and having regard to the circumstances there is good reason for entertaining the appeals and deciding them on the merits." It cannot be disputed that the present question is of general importance and the original application cannot be thrown away on the said objection of the learned counsel for the department. 9. There is no force in the contention of the learned counsel for the petitioner that one more opportunity of hearing should have been given to the petitioner before passing the best judgment assessments dated May 31, 1996 (annexure-1). Admittedly survey of the business premises of the petitioner was done on April 12, 1996. It is specially mentioned in the assessment orders dated May 31, 1996 (annexure-1) that several notices were given to the petitioner and the last notice was for May 31, 1996. In the application dated June 24, 1996 moved under section 10C of the 1954 Act (annexure-3) by the petitioner, it is stated that Shri J.K. Jain, advocate, Alwar was engaged to represent in these cases, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he transfer application shows that the arguments of both the parties were heard on July 10, 1996. Under these facts and circumstances of the cases, the respondent No. 2 should not have dismissed the applications moved under section 10-C of 1954 Act by his order dated July 30, 1996 annexure-8. He could have waited for a couple of days particularly when he had already granted several adjournments to the petitioner. On this ground, the orders dated July 30, 1996 annexure-8 cannot be sustained. 11. Admittedly, the petitioner purchased oil seeds as raw material for manufacturing edible/non-edible oil. In both the cases, the respondents have filed a photostat copy of the notice dated May 21, 1996 (annexure R-1 in each case) issued to the petitioner by the respondent No. 2. Its relevant portions run as under: 12. Oil-seeds were purchased by the petitioner without payment of tax in pursuance of the notification dated March 7, 1994 issued under section 4(2) of the 1954 Act and on payment of tax at the rate of 2 per cent under notification dated March 15, 1996 issued under section 15 of the 1994 Act. It would be best to quote here these notifications in extenso. They run as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il; and this contention we find to be without force. Vanaspati, in our opinion, is essentially an oil although it is a different kind of oil than that oil(be it rapeseed oil, cotton-seed oil, groundnut oil, soyabean oil or any other oil) which forms its basic ingredient. Oil will remain oil if it retains its essential properties and merely because it has been subjected to certain processes would not convert it into a different substance. In other words, although certain additions have been made to and operations carried out on oil, it will still be classified as oil unless its essential characteristics have undergone a change so that it would be a misnomer to call it oil as understood in ordinary parlance. The word 'oil' is not defined in the Act and, therefore, its dictionary meaning may well be pressed into service for interpreting the term 'oil mill'. According to Webster's Third New International Dictionary (1966 Edition) the word 'oil' has different connotations in different situations but in the context of item 5 aforesaid the meaning to be given to it would be: 'any of various substances that typically are unctuous, viscous, combustible liquids or solids easily liquefiable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly distinguish the former from the latter, either in physical or chemical properties or in food value. No such difference was indicated and all that he said was that vanaspati would normally be available in solid state and had the appearance of ghee rather than that of any oil. This, in our view, is a superficial difference which does not at all go to the root of the matter." 14.. In Tungabhadra Industries Ltd. v. Commercial Tax Officer [1960] 11 STC 827 (SC), relied upon by the learned counsel for the petitioner, it has been observed as follows: "...........................................We are unable to accept this argument. No doubt, several oils are normally viscous fluids, but they do harden and assume semi-solid condition on the lowering of the temperature. Though groundnut oil is, at normal temperature, a viscous liquid, it assumes a semi-solid condition if kept for a long enough time in a refrigerator. It is therefore not correct to say that a liquid state is an essential characteristic of a vegetable oil and that if the oil is not liquid, it ceases to be oil. Mowrah oil and Dhup oil are instances where vegetable oil assume a semi-solid state even at normal temper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e oil meant for human consumption." Para 2(g) of the Pulses, Edible Oil Seeds and Edible Oil (Storage Control) Order, 1977, as amended, defines edible oil as under: "(g) "Edible oil" means any oil used, directly or after processing, for human consumption and includes hydrogenated vegetable oil." It has been held in "Chandausi Oil Mills v. Sales Tax Commissioner [1961] 12 STC 310 (All.) that words used in Control Orders may be given the same meaning. 16.. Vanaspati has been included in hydrogenated vegetable oil to make the position crystal clear in the following notifications: Entry No. 63 of Notification No. F.4(8)FD/Gr.IV/94-46 dated 7.3.1994, Sr. No. 912 of J.K. Jain's Book, II Volume. Entry No. 53 of Notification No. F.4(11)FD/Gr. IV/95-49 dated 27.3.1996, Sr. No. 968. Notification No. F. 4(16)FD/Gr. IV/86-17 dated 28.4.1986, Sr. No. 624. Entry No. 62 of Notification No. F.4(7)FD/Gr. IV/92-70 dated 4.3.1992, Sr. No. 869. Entry No. 64 of Notification No. F.4(5)FD/Gr. IV/88-13 dated 8.3.1988, Sr. No. 703. 17.. Under 1954 Act and 1994 Act, the taxable event is sale or purchase and not production or manufacture, attracting excise duty under Central Excises and Salt ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
