9911796707
TMI Blog2009 (12) TMI 884X X X X Extracts X X X X X X X X Extracts X X X X ..... Division II, Bangalore in CST AP. No. 12/2003-04 wherein the Joint Commissioner had dismissed the appeal confirming the order passed by the assessing authority under section 9(2) of the CST Act, 1956 for the year 2000-01. At the time of admission the matter was admitted to answer the following substantial question of law: "Whether the Tribunal was justified in holding that assessing authority can invoke powers vested under section 18AA of the Karnataka Sales Tax Act, in order to forfeit the excess tax paid under Central Sales Tax Act, pursuant to section 9(2) of the Central Sales Tax Act, 1956?" The facts leading to this case are as hereunder: The assessee is a dealer both under the KST as well as CST Acts. He is engaged in manufacturin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of his submission he has relied upon two judgments: (i) Commissioner of Central Excise v. Maruti Udyog Ltd. [2002] 49 RLT 1 (SC), and (ii) Delhi Cloth & General Mills Co. Ltd. v. Commissioner of Sales Tax, Indore [1971] 28 STC 331 (SC). Relying upon these two judgments he contends that the assessee is entitled to quote price of his choice and that the amount collected by him cannot be treated as towards tax. He further contends that the Tribunal as well as the other authorities did not consider that the assessee had inherent power to file revised return and was entitled to collect additional extra tax paid by the assessee and he can seek for refund of the excess tax. Under the circumstances, he requested the court to allow the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent and 10.5 per cent. Collection of excess tax from the customer is not disputed. As a prudent taxpayer he had remitted the tax which he had collected from the customers to the Department. Thereafter the assessee after becoming wise filed a revised assessment stating that cost of the product was more than the amount shown in the invoices. Therefore he was entitled to refund of the excess tax paid by him as the assessee has sold the products to the customer at a higher rate and the excess tax paid by the assessee to the Department is refundable to the assessee. In the matter of Maruti udyog Ltd. [2002] 49 RLT 1 the honourable Supreme Court was required to consider the excise duty collected by the assessee from its customer as the excise dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee to its customer. In Delhi Cloth & General Mills Co. Ltd. case [1971] 28 STC 331, the honourable Supreme Court has considered the judgment in the case of Love v. Norman Wright (Builders) Ltd. [1944] 1 All ER 618 and held as follows (at page 335 of 28 STC): "Whenever a sale attracts purchase tax, that tax presumably affects the price which the seller who is liable to pay the tax demands but it does not cease to be the price which the buyer has to pay even if the price is expressed as x plus purchase tax." From this it is clear that in the instant case the sale attracts the purchase tax. It may affect the price of the seller. But the seller is liable to pay the tax demanded and the same has to be collected from the buyer and the sell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is no unjust enrichment and also he has explained the circumstances for filing revised returns and pleaded to consider the same. I have gone through this letter and feel not convincing because the assessee has charged ten per cent tax and has remitted to the Depart ent and now he cannot restructure the invoice. If this restructuring is allowed, I do not know what will happen to the purchaser who has taken the purchase value demarking the taxes paid and already income-tax and other returns are filed before many authorities. Now as things stand, I feel there is no major financial disturbances since already many authorities have accepted this and agreed upon and now to reconsider the same will affect income-tax, excise duty and sales tax. O ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
