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TMI Blog2003 (2) TMI 437X X X X Extracts X X X X X X X X Extracts X X X X ..... ave heard the learned counsel for the parties. 3.. The petitioners are companies registered under the Indian Companies Act which carry out the business of crushing wheat, manufacture of atta, maida, suji and bran in their mills. The petitioners are registered under the U.P. Trade Tax Act and Central Sales Tax Act and are holders of valid recognition certificates under section 4-B of the U.P. Trade Tax Act, 1948. 4.. The petitioners purchased wheat from the Food Corporation of India (hereinafter referred to as "the FCI") against form III-B which is the prescribed form as wheat purchased by them is raw material for the purpose of wheat products. It is alleged in paragraph 3 of the writ petition that wheat is a commodity of special importanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hase. Accordingly, the tax is payable on the cost of wheat purchased. It is alleged in paragraph 7 of the writ petition that until and unless the dealer are verifiable, the petitioner would not be in a position to make entry in the account books of the cost of wheat but in fact a lump sum tax has been charged on the wheat per quintal which is contrary to section 3-D. 8.. In paragraph 9 of the writ petition it is alleged that the respondent No. 1 issued form III-C(2) to the petitioners for such purchases made from the FCI. Form III-C(2) is a certificate to be issued by the dealer who is not the first purchaser within the State and claims exemption from payment of tax. True copy of such form is annexure 6 to the writ petition. It is alleged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1994 wrote a letter to all the District Managers of the FCI to the effect that form III-B collected from the Roller Flour Mills against the sale of wheat may be sent to the Regional Office with a view to enabling them to file the same along with the monthly return for seeking refund of excess tax. True copy of the letter dated November 16, 1994 is annexure 7 to the writ petition. He also gave directions to all the District Managers of the FCI to charge two per cent tax against form III-B from the Roller Flour Mills instead of four per cent. In paragraph 16 of the writ petition it is alleged that the U.P. Roller Flour Mills Association on May 15, 1995 wrote a letter to the members for expediting the action on the pending issues concerning r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the petitioners does not arise nor are they entitled to form III-B from the petitioners in view of the fact that form III-C(2) was issued by the FCI which proves that the wheat supplied by the FCI was four per cent tax paid. The petitioner has prayed for refund of two per cent tax to be made to the petitioners. 14.. A counter-affidavit has been filed by the FCI and we have perused the same. In paragraph 5 of the same it is stated that under section 15 of the Central Sales Tax Act, wheat is a declared commodity and only four per cent tax is chargeable as per relevant notification. There is a provision for seller to avail two per cent rebate on his first purchases subject to obtaining III-B forms from the Roller Flour Mills so that there i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which has been purchased or procured from within the State the FCI is not charging any tax. In U.P. there are three destinations of FCI, i.e., Lucknow, Kanpur and Varanasi. The selling rate of wheat from these centers has been fixed by the FCI headquarter at New Delhi. The price per metric ton charged from these centers is the same whether such wheat is purchased by FCI within U.P. or from outside the State of U.P. In case the wheat has been purchased by the FCI from outside the U.P. the same shall be sold on the price fixed plus tax at the rate of four per cent without form III-B and two per cent with form III-B. Photocopy of the circular in this connection is annexure C.A.-1. In paragraph 14 of the counter-affidavit it is stated that noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cognition certificate has been granted. Thus form III-B is a pre-condition only in such circumstances where the ultimate benefit is to be made available to that class of manufacturers. In paragraph 8 it is stated that the respondent has accepted form III-B for U.P. wheat also and after accepting this form they have denied the concession to which the petitioners are entitled. 17.. The petitioners purchase wheat from FCI against form III-B for manufacture of atta, maida, etc. The petitioners are holding a valid recognition certificate on the basis of which they can purchase the wheat, if it is taxable as first purchase in the hands of the petitioners against form III-B. 18.. In our opinion, if the wheat is not taxable at the hands of the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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