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TMI Blog2008 (10) TMI 617X X X X Extracts X X X X X X X X Extracts X X X X ..... for the financial year 1990-91 in respect of the non-petitioners dealers, the Assessing Authority observed that certain handicrafts items were purchased by the dealers for re-sale under Form ST-17 but were sold for the purpose of exports under Form ST-17B and, on the opinion that the purchase on Form ST-17 was not for exports, the Assessing Authority issued notice to the dealers as to why purchase tax be not imposed; and, for want of a plausible reply, the Assessing Authority proceeded to impose 10% purchase tax and interest thereupon in the separate assessment orders dated 01.06.1994. The amount involved in that regard in relation to the non-petitioner M/s Bhawani Exports (CR No. 580/1999) had been 10% tax on Rs. 1,80,000/- i.e., Rs. 18,000/- and interest at Rs. 13,320/-; and that in relation to the non-petitioner M/s Bhawani Emporium (CR No. 581/1999) had been 10% tax on Rs. 1,17,792/-, i.e., Rs. 11,779/- and interest at Rs. 8,716/-. In the said assessment orders there had been certain other additions and impositions too but the same are not the subject matter of these petitions. Aggrieved by the aforesaid assessment orders dated 01.06.1994, the dealers preferred respecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order passed by a Division Bench of this Court in CWP No. 1650/1993 has also been misplaced. Learned counsel for the petitioner has referred to the fact that the goods were procured by the non-petitioners without payment of tax under Form ST-17 and that carried specific declaration that the goods would be taxable at the last point. According to the learned counsel, the declaration was definitely violated when the goods are attempted to be sold under Form ST-17B. It is submitted that avoidance of tax by the dealers in this manner cannot be countenanced. The relevant parts of Section 5-A of the Act of 1954 dealing with levy of purchase tax, as operative at the relevant point of time, read as under:- 5A. Levy of Purchase Tax.- (1) Every dealer who in the course of his business purchases any goods other than exempted goods, in circumstances in which no tax under section 5 and 5E is payable on the sale price of such goods, shall be liable to pay tax on the purchase price of such goods at the same rate at which it would have been leviable on the sale price of such goods under section 5 and 5E: Provided that no tax under this section shall be levied on a dealer other th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or purposes of sale within the State, whether or not to a deptt. of the State or Central Govt., on which tax under the Act either at full rate or otherwise or at the rate according to [Ss.5C and 5CC] of the Act is paid, or sale in the course of inter-State trade or commerce on which tax under the CST Act, 1956, is paid, at the point of sale by such registered dealer on the condition that he undertakes to pay such tax and a declaration, which shall be furnished to the AA to that effect in form ST 17 prescribed under the rules is obtained by such manufacturer from such registered dealer." The referred notification dated 07.03.1994 reads as under:- "F.4(8) FD/Gr.IV/94-51 dated 7.3.1994 S.O.181.- In exercise of the powers conferred by sub-section (2) of Section 4 of the Rajasthan Sales Tax Act, 1954 (Rajasthan Act No. 29 of 1954), the State Government being of the opinion that it is expedient in the public interest so to do, hereby exempts from tax the purchase of all goods made upto 31st March [1995] by a registered dealer liable to pay tax under section 5A of the said Act on the following conditions; namely:- (i) that the goods so purchased ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect would have been, and was rather required to be, spelt out specifically. Instead and other way round, the said notification has only provided that any tax on the purchase of the said goods, if charged or collected, shall be paid to the State Government and if paid to the Government would not be refunded. On a plain reading of the notification dated 07.03.1994, the intention is manifest that on the purchases of goods as made by a registered dealer upto 31.03.1995, the levy of purchase tax was exempted if the goods were sold in the course of inter-State trade or commerce. The said notification came to be issued much later i.e., on 07.03.1994 whereas Section 5-A for levy of purchase tax had existed in the statute book since long. For this reason, the second clause in the said notification provides that tax on purchase of the said goods, if charged or collected, shall be paid to the State Government and if already paid, shall not be refunded. The obvious corollary is that if no such tax has been charged or collected, the same is not to be levied. It is not the case of the department that the dealers in the present cases had charged or collected any such purchase tax. For wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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