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TMI Blog2003 (8) TMI 519X X X X Extracts X X X X X X X X Extracts X X X X ..... the rate of 4 per cent and aluminium coils not covered by form C, tax was imposed at the rate of 10 per cent. Appeal against the aforesaid assessment order dated December 29, 1990 was dismissed by the Deputy Commissioner (Appeals), Sales Tax, on the ground that the assessee has failed to comply with the provisions of sub-section (1-B)(a) of section 9 of the Act. It was also held by the assessing authority as well as by first appellate authority that Supreme Court in the case of Hindustan Aluminium [1981] 48 STC 411; 1981 UPTC 1249 has held that aluminium coils is taxable as an unclassified item. The Tribunal confirmed the said order in appeal. Hence present revision at the instance of the applicant. 4.. It is relevant to quote section 9(1-B)(a) of the said Act, as under: 9-Appeal (1) ........ (1-A) ......... (1-B) No appeal against an assessment order under this Act shall be entertained unless the appellant has furnished satisfactory proof of the payment of not less than, (a) the amount of tax or fee due under this Act on the turnover of sales or purchases, as the case may be, admitted by the appellant in the returns filed by him or at any stage in any proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the tax admitted by the dealer to be due from him under the Act. In cases where there is a dispute between the dealer and the department as to the correct rate of tax to be applied in respect of the turnover of a particular category of goods, it would become anamalous to require the appellate authority to decide correct rate of tax at the preliminary stage, when that question is in issue in the appeal itself. 6.. However, it appears that a different view has been taken by another learned single Judge reported in 1980 UPTC 536 (Commissioner of Sales Tax v. National Industries). In this case the court was considering the requirement of tax admitted to be deposited as a condition precedent for the entertainment of application under section 30 of the Act. Section 30 of the Act provides filing of application for setting aside ex parte assessment or penalty order. Proviso to section 30 reads as follows: Provided that no such application for setting aside an ex parte order of assessment or penalty shall be entertained unless it is accompanied by satisfactory proof of the payment of the amount of tax admitted by the dealer to be due. In that case, in para 3 of the ruling it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel. 8.. Before making any further observation, it is appropriate at this stage to examine the relevant provisions under Central Sales Tax Act. Chapter III of the Central Sales Tax Act deals with interState sales. It contains section 8, which provides rates of tax on sales in the course of inter-State trade and commerce. Sub-section (1) of section 8 provides that every dealer, who in the course of inter-State trade or commerce, (a) sells to the Government any goods; or (b) sells to a registered dealer other than Government goods of the description referred to in sub-section (3); shall be liable to pay tax at the rate of 4 per cent of his turnover. The aforesaid sub-section (1) of section 8 shall not apply to any sale in the course of inter-State trade and commerce unless the dealer selling the goods furnishes to the prescribed authority in the prescribed manner, forms C and D, as prescribed under sub-section (4) of section 8. Rule 12 of the Central Sales Tax (Registration and Turnover) Rules, 1957 provides the manner of filing of forms C and D. Failure of the assessee-dealer to furnish requisite form will dis-entitle him to urge that sales were made either to the Government or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filing of the return, as under law he is entitled to file requisite certificates, at the subsequent prescribed stage. The said stage having been crossed and inability of the dealer to furnish requisite forms may amount failure of the appellant to furnish satisfactory proof of payment of tax. It may amount admission of grater amount of tax at the subsequent stage and proceedings. 10.. At this stage it is necessary to revert back to the facts of the present case. As mentioned above, indisputably, the applicant could not file certain C forms in respect of turnover of pressure cookers and its spares and aluminium utensils. In absence of form C obviously the liability to pay tax was at the rate of 10 per cent. Similarly, in respect of aluminium coils Supreme Court in the case of Hindustan Aluminium Corporation Ltd. v. State of U.P. [1981] 48 STC 411; 1981 UPTC 1249 held that aluminium roll products and its extrusions cannot be described as metal for the purposes of Notification No. 4949 dated May 30, 1975. This judgment is dated July 28, 1981 and had come into existence during the pendency of assessment proceedings and was noticed by the assessing authority in paragraph 7 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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