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TMI Blog2012 (1) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 (ii) thereof categorically makes the incentive subject to the condition that, "the sales tax incentive should be utilized for the deferment of industry only and should not be utilized for any other purpose". Therefore, the plea of the petitioner that by reason of incentives sanctioned to them the disputed tax deemed to have been paid and, therefore, the condition that the proviso to section 19(1) of the APGST Act stands waived is misconceived and cannot be accepted. The STAT has also considered this aspect and, in our considered opinion, came to correct conclusion. Appeal dismissed. - Tax Revision Case Nos. 72, 88 of 2011 - - - Dated:- 27-1-2012 - RAO V.V.S. AND RAO NALLA B.N., JJ. For the Appellant : S.R. Ashok, Senior Counsel for P. Vijay Kumar For the Respondent : P. Balaji Varma, Standing Counsel, ORDER:- The order of the court was made by V.V.S. RAO J.- The petitioner, who is a registered dealer under both the Andhra Pradesh General Sales Tax Act, 1957 ( the APGST Act ) and the Central Sales Tax Act, 1956 ( the CST Act ) on the rolls of the Commercial Tax Officer, Special Commodities Circle, Hyderabad (CTO), is engaged in the manufacture and sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not produce proof of payment of 12.5 per cent of the disputed tax. Therefore the appeals were rejected on February 15, 2006. As noticed supra, the dealer unsuccessfully filed appeals under section 21(1) of the APGST Act before the STAT. The senior counsel for the petitioner would contend that the STAT was not justified in holding that the petitioner committed default in complying with the second proviso to section 19(1) of the APGST Act when the petitioner under the relevant proceedings of the Commissionerate of Industries sanctioning incentive (sales tax deferment) is deemed to have made the payment of entire tax. Nextly it is contended that the second proviso to section 19(1) of the APGST Act having been inserted by the A.P. Act No. 3 of 2002 with effect from November 30, 2001 cannot be made applicable in respect of an appeal before the ADC/STAT relating to a sales tax dispute prior to November 30, 2001. We have given serious consideration to the submissions made by the petitioner. For reasons more than one both the submissions do not commend to the court. Indisputably the assessments were served on the dealer on June 13, 2005 and the appeals were filed before the ADC on Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act are (1) in the appeal, the dealer should have objected to an order passed or proceeding recorded by an authority under the provisions of the Act, other than an order passed under section 14(4)(c) thereof; and (2) the appeal should have been preferred by the dealer, to the prescribed authority, within 30 days from the date on which the order or proceeding was served on him. Under rule 33(1) of the APGST Rules, and rule 59 of the APVAT Rules, an appeal lies to the Appellate Deputy Commissioner against an order passed or proceeding recorded by an officer not above the rank of the Assistant Commissioner. If an appeal is preferred within 30 days, from the date of receipt of an order passed or proceeding recorded by the authority, the appellate authority is required to hear and adjudicate the appeal on its merits, subject to fulfilment of the other conditions prescribed in the Act and the Rules. The first proviso to section 19(1) confers discretion on the appellate authority to admit an appeal preferred by a dealer beyond 30 days of receipt of the order passed by the authority. Exercise of such discretion is fettered by two conditions: (1) the appeal ought to have been prefe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order of the ADC and the order of the STAT upholding the former cannot be faulted. The submission of the petitioner that the second proviso to section 19(1) of the APGST Act as substituted by the A.P. Act No. 3 of 2002 with effect from November 30, 2001 cannot be applied to the petitioner's case is devoid of any merit. Indisputably the disputed assessment is for 2001-2002. There is also no dispute that the dealer filed the necessary statements and forms after January, 2003, and the CTO, who passed orders on March 21, 2005. The appeal was filed on July 12, 2005 by which time the amended second proviso was very much part of the statute book. The remedy of appeal is not a matter of right. It is a right conferred by the statute and it is axiomatic that the right of appeal can be availed of only after fulfilling the conditions laid down in the statute. Before substitution of the second proviso, every appeal has to be filed in accordance with rule 33(1) of the APGST Rules, and such appeal shall be accompanied by declaration in form 1A, which contains a statement of the dealer that the tax admitted to be due or instalments so granted have been paid and the declaration must contai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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