9911796707
TMI Blog2001 (8) TMI 1363X X X X Extracts X X X X X X X X Extracts X X X X ..... resent revision. 3.. The learned counsel for the dealer contended that the assessee is a manufacturer of ball point pens, which are sold to its sister concern, which in turn exports the same to the customers in Mumbai. It is stated that the documents stamped at the check-post proves that the assessee had manufactured and sold to its customers ball point pens, which are exempted from levy of tax. The learned counsel contended that the department conducted some enquiries behind the petitioner/dealer and basing on such material without supplying any copies of such reports, took adverse inference and decided the matter against the assessee, which is contrary to the settled principles of law. According to the learned counsel, in spite of repeated demands even after the matter was remitted by the Appellate Deputy Commissioner, the assessing authority did not provide the copies of such reports that are used by the department to hold against the assessee. Such denial of opportunity in not providing copies of the material collected by the department behind the assessee/dealer is illegal and therefore the impugned order is liable to be set aside. The learned counsel even otherwise also con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arayanaguda Circle, Abids Division, Hyderabad. The dealer is engaged in the manufacture and sale of household articles and industrial containers and components made of plastic, as per catalogue of goods published and offered to the public in the brand name of "Unique Plastics". The company's factory is situated at Plot No. 140, Miyapur, Bollaram, Narsapur, Medak district. Its registered office is at Kong Koti Cross-roads, Hyderabad. Its sister concern, i.e., M/s. Mahaveer Combines is its marketing agent. For the relevant period, the assessee filed its monthly A-2 returns disclosing its turnovers as under: Gross turnover ... Rs. 23,44,64,690.00 Exempted turnover ... Rs. 22,19,09,079.00 Net turnover ... Rs. 11,25,55,511.00 Their total and gross turnovers represent the following sales as per the returns filed above: 1.. First sales of household articles of ... Rs. 21,25,55,511.00 plastic within the State 2. Sales of stationery (written as ball ... Rs. 22,19,09,079.00 pens in brackets) 7.. As the department suspected the claim of the assessee with reference to the exemption claimed in respect of the sale (of stationery) of ball point pens, which do not find place in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l point pen holders and not ball point pens, negatived the claim, recording its finding as under: "The plain reading of the G.O. very clearly shows that the exemption is to ball point pens as they are known in the market. Ball point pen holders without refills cannot be called as ball point pens by any stretch of imagination. Hence, the ball point pen holders without refills are not attracted by the terms of the aforesaid G.O., it is very clear that ball point pen is a composite item consisting of pen holder and also refill, in this case the essential part like refill is missing, hence we are unable to appreciate the argument of A.P. Without refill the ball point pen holder cannot be consider as ball point pen." 8.. Before us the learned counsel for the dealer reiterated its contentions with reference to the non-supply of the material that was collected by the departmental officers in the course of their enquiries as to the genuineness of the customers to whom the petitioner/dealer has claimed to have sold its manufactured goods, viz., ball point pens. In the absence of supply of such material, the impugned order is liable to be set aside. The learned counsel also relied upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... By the G.O., what was exempted by the Government is only the sale or purchase of the ball point pens by the dealers. If what was manufactured by the assessee are ball point pens, the assessee is certainly entitled for exemption. But the finding recorded by the Appellate Tribunal is that what was manufactured by the assessee was only ball point pen holders, i.e., without refills. Therefore, the Tribunal recorded that the ball point pen holders without refills could not be considered as ball point pens. The said finding is also supported by the statement of one of the directors of the assessee-dealer, who has stated that they have not purchased or manufactured refills. In the light of the said statement, what was manufactured by the assesseedealer at the most is only ball point pen holders, which could not be considered as ball point pens. 11.. In the light of the said finding recorded by the Tribunal with which we are in agreement, we do not find that there is any error or irregularity in the order of the Appellate Tribunal. 12.. Just before delivery of the above judgment, a representation was made by the learned counsel for the petitioner that the issue in dispute is covered b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, reversed the view of the Tribunal. The relevant portion of the order of the High Court is as under: "A ball pen is made of two components, viz., the refill and the cover or the body into which the refill is put. As already pointed out, the cover of the refill cannot be used for writing, whereas the refill alone is used for writing. One can write with the refill only. The body of the refill is not an aid to writing for which the refill is used. But that can only facilitate handling of the refill or that can merely make the refill more attractive in appearance. Refill being the only major component of the ball pen, we are of the view that the refill is not an ancillary of the ball pen but a major component of it and hence that can be regarded as a ball pen by itself. In common parlance or in commercial sense also the body of the ball pen cannot be regarded as pen, but a refill which can be used for writing as such, can be treated as pen. What can write and which can be used for writing is ordinarily a pen, but the body of the ball pen which is not an aid to writing device but merely an embellishment, can in no case be treated as a pen. So from a layman point of view ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
