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TMI Blog2009 (8) TMI 1080X X X X Extracts X X X X X X X X Extracts X X X X ..... ecific denial in so far as purchase tax on the purchase of vehicle was concerned. The assessing officer was pleased to pass an order of assessment which was served on the petitioner on November 28, 1995. The petitioners being aggrieved by the order preferred an appeal before the appellate authority. In the course of the appeal, the appellate authority was of the opinion that the Sales Tax Officer while assessing the appellant did not levy purchase tax under section 13AA, though the goods fall into Part I of Schedule C attached to the Bombay Sales Tax Act, 1959. A showcause letter was issued asking the appellants as to why purchase tax under section 13AA should not be levied along with consequential interest under section 36(3)(b). The petitioners filed a reply to the show-cause notice describing the procedure for purchase of gold from Minerals and Metals Trading Corporation of India Limited (MMTC). The petitioners also relied on various documents including customs notification. It was the submission of the petitioners that the purchase tax under section 13AA was not payable and alternatively if the purchase tax is held to be leviable then setoff under section 42(1) be granted to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner is liable for payment of purchase tax on purchase of gold/bullion from MMTC. There is no dispute that the petitioner has an industrial unit at SEEPZ in Andheri East for manufacture of gold jewellery products for export. The Government of Maharashtra by notification of June 25, 1990 was pleased to amend, in exercise of its power under section 41(1) of the Bombay Sales Tax Act with effect from April 1, 1989, the Government notification, Finance Department No. STA/1059(iii)G1 dated December 28, 1959 after entry 288 to include the following entry: "289 Sales of gold bullion covered by entry 1, Part I of Schedule C appended to the Bombay Sales Tax Act, 1959 effected by the Minerals and Metals Trading Corporation of India Limited (MMTC), P.O. Box No. 11284, Maker Bhavan No. 2, 19 Sir Vithaldas Thackersey Marg, Bombay 400 020 to gem and jewellery units of the Santacruz Electronics Export Processing Zone (SEEPZ), Bombay. Whole of tax (1) If the gem and jewellery unit furnishes to the selling dealer a declaration in form CK declaring, inter alia, that the unit is certified for that purpose by the Commissioner of Sales Tax, and that the goods are purchased for use within "SEEP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such goods, a purchase tax at the rate of two paise in the rupee on the turnover of such purchases." It is thus clear that if a dealer who is liable to pay tax under the Act on purchases of specified goods does not resell them, he is also liable to pay purchase tax. Therefore, apart from incidence of sales tax at the point where the sale takes place the incidence of purchase tax will arise in a case of non-sale if such person is a dealer. Even if these points are considered to be different in point of time, the fact remains that in the instant case the petitioners have been allowed to purchase gold from MMTC under the replenishment licence for use in the SEEPZ area for the manufacture of articles of gold and jewellery for export. Ordinarily, therefore, under section 13AA the petitioner would be liable to payment of purchase tax as there is no sale. However, considering the Government notification earlier referred to, the petitioner is exempted from payment both of sales tax and purchase tax. It is not possible to accept the contention of the respondents that the tax referred to in the notification is only sales tax and not purchase tax. The second contention on behalf of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontrary there is a finding against the petitioner that he had not established that the purchase was not from a dealer. The alternative submission in terms of section 12(4) of the Maharashtra Act 19 of 1996 is that as the petitioner had preferred an appeal the petitioner would not be liable to pay the purchase tax. Section 16(4) reads as under: "16. (4) When any dealer has effected any purchases from a person who is not a dealer and has not paid purchase tax under section 13 of the Bombay Sales Tax Act in respect of such purchases only on the ground that such purchase tax is not payable on purchases effected from the persons who are not dealers and that no such tax could have been levied or collected if the persons who are not dealers and that no such tax could have been levied or collected if the amendments made in the Bombay Sales Tax Act, by this amendment Ordinance had not been made, and where such dealer has been assessed in respect of any period and he has objected to such levy in writing on the grounds as aforesaid and has filed an appeal against such order on the ground as aforesaid, then, notwithstanding anything contained in the Bombay Sales Tax Act as amended by this am ..... X X X X Extracts X X X X X X X X Extracts X X X X
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