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TMI Blog2008 (8) TMI 830X X X X Extracts X X X X X X X X Extracts X X X X ..... turnover of rice husk amounting to ₹ 29,50,000 as was held by the first appellate authority. No illegality in the order of the Tribunal holding that no tax is payable under section 3F of the Act. The revision succeeds and is allowed in part and it is held that the Tribunal was not justified to knock of the tax on the purchase of rice husk amounting to ₹ 29,50,000. The rest of the order of the Tribunal calls for no interference. The revision succeeds and is allowed in part. - - - - - Dated:- 20-8-2008 - PRAKASH KRISHNA , J. PRAKASH KRISHNA J. The present revision has been filed under section 11 of the U.P. Trade Tax Act, 1948 hereinafter referred to as the Act against the order dated December 8, 1999 passed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Sales Tax, U.P. v. Naveen Traders [1975] 36 STC 440 (All); [1973] UPTC 215 and Commissioner, Sales Tax, U P. v. Jiwan Singh, Rikhi Ram [1978] STJ 66? (ii) Whether, on the facts and in the circumstances of the case, the Trade Tax Tribunal was legally justified to hold paddy husk as an unclassified item despite it has made taxable under Government notification issued in this behalf? (iii) Whether, on the facts and in the circumstances of the case, the Trade Tax Tribunal was legally justified to quash the tax on the lease amount received for transfer of right to use plant and machinery without considering the law laid down by the honourable Supreme Court in the case of Sirpur Paper Mills Ltd. v. Collector of Central Exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2, 1994, four papers were recovered which includes the analyst report and registers also. Therein paddy husk was written. Explanation that since the said sample was brought by class IV employee who was not aware about the distinction in-between the rice husk and paddy husk, due to ignorance, in place of paddy husk, rice husk was written has been accepted by the Tribunal. The submission is that the acceptance of the explanation by the Tribunal is not justified as the dealer is bound by its own document. A bare perusal of the order of the Tribunal would show that the entry of rice husk and paddy husk found place in the register for the period from September 16, 1993 to January 12, 1994 on the basis of the entry of paddy husk and rice husk, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rice husk and paddy husk are two different commodities and purchase of paddy husk is not taxable in the hands of dealer as a first purchaser. In this view of the matter, the question Nos. 1 and 2 are decided by holding that the turnover of rice husk and paddy husk as determined by the first appellate authority was justified and the Tribunal was not justified in treating the entire purchase as of rice husk and granting the exemption on the total purchase of Rs. 69,50,000. The dealer is liable to pay purchase tax on the turnover of rice husk amounting to Rs. 29,50,000 as was held by the first appellate authority. So far as the third question is concerned, the relevant facts are that in the relevant assessment year, the dealer-opposite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p Vegetable Products Industries Ltd. v. State of U.P. [1998] UPTC 336. Tax under section 3F read with section 2(d) can be levied under the U.P. Trade Tax Act only on the turnover of movable property. Plants and machineries permanently attached to earth are not a movable property and they are not goods. Even it was not found by the assessing officer that the plants and machineries are movable properties or goods or not permanently attached to earth. Shri B.K. Pandey, learned Standing Counsel, submits that the matter requires reconsideration in view of the judgment of the apex court in Sirpur Paper Mills Ltd. v. Collector of Central Excise AIR 1998 SC 1489; [1997] 10 JT 82 (SC). This was a case under the Central Excise and Salt Act, 194 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SC). In that case a finding of facts was recorded by the authorities below that the plant and machinery is not permanently attached to earth and it can be removed. In view of above, I find no illegality in the order of the Tribunal holding that no tax is payable under section 3F of the Act. So far as question No. 4 is concerned, the learned Standing Counsel could not point out any illegality or infirmity in the order of the Tribunal. In view of above discussions, the revision succeeds and is allowed in part and it is held that the Tribunal was not justified to knock of the tax on the purchase of rice husk amounting to Rs. 29,50,000. The rest of the order of the Tribunal calls for no interference. The revision succeeds and is allowe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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