9911796707
TMI Blog2009 (3) TMI 945X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the Assessing Authority have been accepted by the Revenue without being challenged either before the Appellate Authority or the Tribunal. Those orders have also attained finality. Therefore, it is not possible to permit re-opening of that issue. The aforesaid principles have been laid down by the Supreme Court in the case of Radhasoami Satsang v. Commissioner of Income-tax [1991 (11) TMI 2 - SUPREME Court]. The aforesaid judgment has also been affirmed in the case of Municipal Corporation of City of Thane v. Vidyut Mettalics Ltd. [2007 (9) TMI 399 - SUPREME COURT OF INDIA]. Therefore, the Tribunal has taken the correct view and the question of law referred to this court is liable to be answered against the Revenue and in favour of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the aforesaid question. Brief facts necessary for disposal of the aforesaid issue may first be noticed. The dealer-respondent deals with wrapping and packing material for medicines. The Excise and Taxation Commissioner, Faridabad, framed his assessment in respect of assessment year 1996-97 vide its order dated May 22, 1998 by treating the aluminium foil as aluminium sheet which is a non-ferrous metal. Accordingly, tax in respect of sale of aluminium foil was calculated at the rate of two per cent on the basis of entry No. 13 of the Notification bearing No. SO46/HA20/73/S15/96 issued under section 15 of the Act and Notification No. 108 CA/74/56/S8/94 dated November 25, 1994 issued under the CST Act. However, the revisional auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opinion of this court. Ms. Ritu Bahri, learned counsel for the Revenue has argued that the order of the revisional authority is absolutely correct and that of the Tribunal is unsustainable. She has referred to the clarification issued by the Prohibition, Excise and Taxation Commissioner, Haryana. She has further placed reliance on entry No. 13 of the notification dated March 29, 1996 and argued that in common parlance aluminium foil and aluminium sheet are two different marketable commodities and therefore those two items cannot be considered identical. She has emphasized that end-use of aluminium foil is entirely different from aluminium sheet . She has also placed reliance on a judgement of the Supreme Court in the case of Colle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority or revisional authority cannot take a view different from the one taken by the fact-finding authority merely because another view is possible. In that regard, he has placed reliance on the observations made in para 9 of the judgment of the Supreme Court in the case of Collector of Customs, Bombay v. Swastic Woollens (P.) Ltd. [1989] 72 STC 201; AIR 1988 SC 2176. The aforesaid view has also been affirmed by the subsequent judgment rendered in the case of Collector of Central Excise, Coimbatore v. Protein Products of India Ltd. [1989] 74 STC 98 (SC). He has also controverted the argument of the learned State Counsel based on the judgment of the Supreme Court in K. Mohan Co. Exports' case [1989] Suppl 2 SCC 337 by urging that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Bombay High Court in the case of Commissioner of Sales Tax v. Voltas Ltd. [1977] 39 STC 409. A Division Bench of the Bombay High Court has held that until and unless aluminium foil was coated on to the cheese cubes it had no definite form or shape except for thin flat sheet. It was only when it was coated on to the cheese cube that it took shape of the cheese cube. The mere fact that the dealerrespondent has subjected the foil to printing and lacquering would not result into a conclusion that it loses its character as aluminium foil . Moreover, the Assessing Authority has taken a particular view on facts. Merely because another view is possible, it cannot constitute a basis for exercise of revisional jurisdiction under section 40 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finding of the Tribunal in this case is unassailable. We are, however, of the view that if a fact-finding authority comes to a conclusion within the above parameters honestly and bona fide, the fact that another authority, be it the Supreme Court or the High Court may have a different perspective of that question, in our opinion, is no ground to interfere with that finding in an appeal from such a finding. In the new scheme of things, the Tribunals have been entrusted with the authority and the jurisdiction to decide the questions involving determination of the rate of duty of excise or to the value of goods for purposes of assessment. An appeal has been provided to this Court to oversee that the subordinate Tribunals act within the law. M ..... X X X X Extracts X X X X X X X X Extracts X X X X
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