9911796707
TMI Blog2012 (4) TMI 551X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner of Commercial Tax, (Audit)-6.6, DVO-6, Peenya, Bangalore, under sections 39(1), 72(2) and 36 of the Karnataka Value Added Tax Act, 2003 (for short, "the Act") vide annexure K and the consequential demand notices issued. 3. By the impugned order, the assessing officer has held that the assesseecompany was liable to pay tax at 12.5 per cent on the sale of bottles along with interest on the balance output tax due and payable from the date of its non-payment till the date of quantification of the taxes payable by the assessee-company. 4. The learned counsel for the petitioner, at the outset, submits that though there is an appeal provided against the impugned order, the petitioner is entitled to approach this court as the order pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the customers after inspection of these empty bottles and crates to the extent that the same are in good condition. Further, if the empty bottles and crates are not returned within the stipulated period the deposit collected on the same shall be forfeited." The petitioner filed its return for the tax period April 2009 to March, 2010, claiming exemption on the entire receipts/turnover on the ground that the same represented sale of alcoholic liquor and was exempted in terms of entry 34 of the First Schedule to the Act. The exemption provided in entry 34 of First Schedule applies to beer. It reads as under: "34. Liquor including beer, fenny, liqueur and wine." 6. According to the petitioner, the returns were deemed to have been accepted as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strong reliance is placed by the petitioner. 8. In the impugned order, the respondent-assessing officer has proceeded to hold that in the tax invoices raised for sale of bottles in respect of KSBCL, the assessee-company has shown the cost of beer together with aexcise duty and additional excise duty apart from separately charging the collection Rs. 3 per bottle in which beer was sold. The said amount of Rs. 3 charged for bottle which has been shown as "bottle deposit" in the tax invoice raised was over and above the cost of beer and therefore it was charged as per the agreement entered into by the assessee-company with the KSBCL. Therefore, the assessing officer has come to the conclusion that there were two distinct and separate contracts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of rule 2AE of the Karnataka Excise (Excise Duties & Fees) Rules, 1968, the assessee-company declares and claims deduction on "bottle deposit" to avail of exemption form the levy of additional duty. He also contends that if the sale of beer and bottles are one and the same, then the manufacturer of the same has to pay additional excise duty equal to the value of the bottles. In the light of this and having regard to the conditions incorporated in the agreement, he contends that sale of bottle takes place at a later date as per the terms printed on the reverse side of the tax invoices. Therefore, if the KSBCL failed to return the bottles after the expiry of 30 days, the deposit so collected shall stand forfeited and recognised as incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Deputy Commissioner, exercising his revisional jurisdiction, set aside the order of the assessing officer holding that the cartons was taxable at the rate of liquor was taxable viz., at 50 per cent. The view of the Deputy Commissioner was upheld by the Appellate Tribunal and the High Court. Before the apex court, the assessee contended that since the appellant charged, and the customers paid, for the liquor and cartons separately, in the presence of entry 97 in Schedule I to the Act prescribing a specific rate of tax for cartons, the value of the containers could not be included in the value of the liquor for the purpose of calculating the assessee's turnover. The assessee further contended that the cartons were only secondary con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision rendered in the case of Kalyani Breweries Ltd. v. State of West Bengal [1997] 107 STC 190 (SC) would apply to the facts of the present case and therefore this is not a case for interference in exercise of the writ jurisdiction permitting the petitioner to by-pass the statutory remedy of appeal. 15. Having heard the learned counsel for the parties and on careful consideration of the respective contentions, I find that this is not a fit case for exercising writ jurisdiction permitting the petitioner to bypass the statutory remedy of appeal. The facts involved in the present case have to be reappreciated and the process of reasoning adopted by the assessing officer has to be subjected to further scrutiny by the appellate authority be ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
