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TMI Blog2007 (1) TMI 523X X X X Extracts X X X X X X X X Extracts X X X X ..... aluminium sheets" in commercial and common parlance or whether "aluminium foil" is also known in common parlance as a thin sheet and hence falls within the expression "sheets" used in the notification dated December 31, 1975? 3.. Whether "aluminium foils" even after lamination and printing would continue to be covered under said notification dated December 31, 1975 and hence taxable at the concessional rate of one per cent? 4.. Whether in view of determination made by the Commissioner, Commercial Taxes, under section 12A of the Rajasthan Sales Tax Act, 1954, holding that aluminium foils even after lamination and printing remains aluminium foils and would, therefore, attract Central sales tax at one per cent under notification dated June 13, 1985, having attained finality, is it open to the department to agitate that interState sale of laminated and printed aluminium foils would be taxable as packing material and not as aluminium foil? 5.. Whether the notification dated June 13, 1985, prescribing the rate of tax on "aluminium foil" only clarifies the earlier notification dated December 31, 1975? 6.. Whether the functional character/en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (1) of the said section by any dealer having his place of business in the State, in respect of the sale by him from any such place of business in the course of inter-State trade, of the goods specified in column number (2) of the list appended hereto, to which sub-section (1) applies, shall be calculated at the reduced rate shown against it in column number 3 (1)See [1995] 99 STC 421 (Raj) [P.G. Foils Limited v. Commercial Officer] of the said list on furnishing of a declaration in form 'C' or a Certificate in form 'D', as the case may be. For this dispute, an application was submitted by the assessee M/s. P.G. Foils Ltd., under section 12A of the Rajasthan Sales Tax Act, 1954 (for short "the RST Act, 1954") for obtaining decision from the Additional Commissioner, Commercial Taxes, Rajasthan, Jaipur. The Additional Commissioner, vide, his order dated July 18, 1984 held that the aluminium foils are not covered by the notification dated December 31, 1975. Meanwhile, the assessing authority passed separate provisional assessment orders under section 9 of the RST Act against the assessee for the years from 1982 to 1986 which were challenged by the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Tribunal is correct. Whether the foil is included in the commodity mentioned in the notification, depends on the facts proved in this case. I do not find any illegality committed by the Tribunal in remanding the matter, where both the parties will have opportunity to lead evidence and establish the fact as to how the commodity 'foil' is understood by the persons dealing with the commodity." At this juncture, it will be relevant to mention here that section 12A of the RST Act, 1954 provides that if any question arises otherwise than in the proceedings before a court or under sections 7A, 7B, 10, 10A, 10B or 12, any person or firm, etc., may submit application to the Commissioner, Commercial Taxes for determination of the questions upon which the Commissioner is required to determine such question. It appears from the facts of the case that initially the assessee sought determination of the disputed question about the liability of tax on sale of aluminium foils under section 12A but subsequently, after the decision of this court dated September 12, 1994, the assessee withdrew this application filed under section 12A obviously because of the reason that the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8, 1999 in the case of assessees themselves was sub-judice before this court in the revisions preferred by the Revenue. As stated above, in all the present revisions, the core question involved is whether the aluminum foil is covered under the notification dated December 31, 1975 or not. For this, there are several contentions of both the parties for which the questions of law were framed by this court as mentioned above. During the course of arguments, this court found it appropriate to summon the record of the Tax Board as learned counsel for the Revenue vehemently submitted that the evidence considered by the Tax Board while deciding the appeals of the assessee by order dated February 8, 1999, was produced before the Tax Board and the Tax Board without affording any opportunity of hearing to the Revenue to contest the assessee's application seeking permission to produce additional evidence and without passing any order of taking on record the evidence, decided the appeals in favour of the assessee only on the basis of the evidence produced by the assessee in such manner. Learned counsel for the Revenue vehemently submitted that from the record, it appears that even the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise also, this court also can examine the issue involved in these revisions because of the reason that the issue is only whether the "aluminium foils" fall in the word "sheet" and, therefore, liable for tax at the rate of only one per cent. I considered the submissions of learned counsel for the parties, perused the record of the case as also, the reasons given by the Tax Board in its order dated February 8, 1999 and the reasons given in the impugned order under challenge in these revisions which were passed by the Tax Board after relying upon the order of the Tax Board dated February 8, 1999. So far as the contention of learned counsel for the respondent/assessee that this court itself may decide the question whether the aluminium foil is covered under the notification dated December 31, 1975 is concerned, that cannot be accepted because of the reason that in earlier round of litigation, the then Tax Tribunal held that the question raised by the assessee can be decided and should be decided after evidence and that view was upheld by this court in its order dated September 12, 1994(1). Otherwise also, finding on the contentious question ordinarily must come fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tax Board in arriving at a conclusion that the aluminium foil manufactured by the assessee is covered under the notification dated December 31, 1975, therefore, it will be necessary to look into the record of the Tax Board to find out whether the Tax Board has committed material illegality and irregularity in admitting the additional evidence produced by the assessee for the first time in second appeal before the Tax Board. It will also be necessary to find out whether the Tax Board had at all applied its mind to the question whether the assessee can be permitted to produce evidence in second appeal and if the assessee can be permitted to produce additional evidence in second appeal, whether an opportunity was given to the revenue to meet with the additional evidence produced by the assessee before the Tax Board. It is true that the Revenue in its revisions preferred to challenge the order dated February 8, 1999 as well as in the present revisions preferred to challenge the final assessment orders and orders passed for subsequent years have not raised the above grounds but finding some substance in the contention of learned counsel for the Revenue, this court summoned the reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was given for hearing of the appeal as February 18, 1999. On January 27, 1999, on application of the assessee for early hearing of the appeals, the Registrar, Tax Board, ordered for listing of the appeals for orders on assessee's prayer for preponing the date in appeals before the Bench on January 28, 1999. On January 28, 1999, when the appeals were listed for orders on application for early hearing, it appears that the arguments on the appeals were heard and the Tax Board passed the judgment on February 8, 1999. The Tax Board did not pass any order for taking on record the additional evidence filed by the assessee apart from the fact that from the record, it is not coming out that the Revenue was ever given copy of even the application seeking permission to produce the additional evidence at second appellate stage. Before February 8, 1999, no order for taking evidence on record was passed by the Tax Board and in the order dated February 8, 1999 in para 22, the Division Bench of Tax Board mentioned that during the course of arguments, the assessee/appellant submitted about 30 documents and even then the Tax Board straightaway passed the order in favour of the assessee relying ..... X X X X Extracts X X X X X X X X Extracts X X X X
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