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2009 (11) TMI 860

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..... cer. In the circumstances, answering the questions of law in favour of the assessee holding that if the package material has suffered tax earlier and it is used for selling its product, in the light of the notification dated March 30, 1994 the turnover tax attracts only one per cent. of the tax considering it as second sale or subsequent sale. In order to ascertain the actual facts in the case, we have set aside the order of the assessing officer and remitted the matter for fresh consideration in accordance with law. Accordingly, this appeal is allowed and matter is remanded to the assessing officer who shall consider the matter afresh and pass an appropriate order within an outer-limit of six months from the date of receipt of the copy of .....

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..... ppeal before the Appellate Tribunal, Bangalore, S.T.A. No. 140 of 2004 and other connected appeals. The appeal preferred by the assessee came to be dismissed by the Tribunal by its order dated May 31, 2006. Challenging the concurrent findings of the authorities below the present revision petition has been filed raising the following questions of law: (a) Whether the provisions of section 6B read with Notification No. FD 190 CSL 93(IV) (supra), is independent of the provision contained in section 5 of the Act? (b) Whether the provision contained in section 5(3-D) of the Act would determine the point of levy of packing material for the purposes of levy of turnover tax under section 6B? (c) Whether under the facts and circumstances of the .....

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..... nt. in respect of packing material. Per contra, the learned Government Advocate submits that in view of section 6B of the Karnataka Sales Tax Act, the turnover tax has to be paid at 2.5 per cent. even in respect of the package material. Therefore she requests the court to dismiss the appeal. Having heard the counsel for the parties this court has to consider whether the package material used by the assessee for selling the cement manufactured by it has to be considered as second sale or subsequent sale. If it is so at what rate the turnover tax has to be paid by the assessee on the package material. Prior to notification the assessee was required to pay the turnover tax at the rate of 2.5 per cent. There was no liability on the assessee .....

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..... ned Government Advocate. From the records we are not in a position to say whether the package material used by the assessee for the sale of its product has suffered tax on an earlier point of time which can be disputed question of fact which can be ascertained by the assessing officer on production of proper documents by the assessee. Considering the notification and arguments advanced by the learned counsel for both the parties, we are of the opinion that if the package material used by the assessee for selling its product, i.e., cement has suffered tax earlier. The same has to be considered as second sale or subsequent sale or whether the package material has suffered tax earlier or not, it can be answered by the assessing officer. In the .....

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