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TMI Blog2012 (2) TMI 464X X X X Extracts X X X X X X X X Extracts X X X X ..... ot made good the precise goods which he had purchased were covered under the Schedule to the Excise Act or on the premise that they have not been sold as such, but utilised in manufacturing. Show-cause notice was only one confining to non-production of the proof of payment of additional duties and the order for denying exemption is also on the same reason and therefore, the order passed by the Additional Commissioner cannot be sustained. Appeal allowed. - S.T.A. No. 141 of 2009 - - - Dated:- 2-2-2012 - DHYLENDRA KUMAR D.V. AND KEMPANNA H.S. JJ. B.G. Chidananda Urs, for the appellant S. Sujatha, Additional Government Advocate, for the respondents JUDGMENT The appellant is a dealer registered under the provisions of the Karnataka Sales Tax Act, 1957 (for short, hereinafter referred to as, the Act ). The assessment period is for the year 1998-99. The assessee while filing his return of turnover had claimed certain exemptions in respect of the purchases on goods which figured in entry 3 of the Fifth Schedule to the Act such as: All varieties of textiles, namely, cotton, woollen or artificial silk including rayon or nylon whether manufactured in mills, pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessarily assessed as relatable to entry No. 7A of Part T of the Second Schedule to the Act. 6. The assessee responded to the show-cause notice contending, inter alia, that the show-cause notice was bad not only for the reason that, what was sought to be revised is not an issue covered under an order passed by the Joint Commissioner and being beyond the period of four years it is virtually a revision of the original assessment order and therefore, not tenable, but also on the premise that the Department cannot insist on proof of payment of additional duties of excise in respect of the exemptions claimed under entry 3 of the Second Schedule to the Act; that such a view taken by the Appellate Tribunal in the case of other dealers binds the Additional Commissioner and therefore, also there is no scope for revising the order passed by the Joint Commissioner and requested to drop the proposed show-cause notice, 7. However, the Additional Commissioner rejected such contentions on the part of the assessee and proceeded to revise the order holding that, as the assessee had not made good his claim for exemption by way of producing commensurate proof to indicate that additional duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our years is hit by statutory provisions referred to above. 12.2 The second contention urged is that entry 3 of the Fifth Schedule to the Act does not contemplate a dealer claiming exemption benefit under this entry required to produce proof of payment of additional excise duties and therefore the Commissioner is dearly in error in denying the exemption on the premise that the dealer had failed to produce proof of payment of additional duties by the manufacturer to demonstrate that the purchased free flowing cloth by the dealer is one covered by entry 3. 12.3 It is also pointed out by Mr. Urs that it is most unreasonable to expect a dealer to produce proof of payment of additional duties after six years and even otherwise it is not contemplated in the scheme of exemption as there is no guarantee that a dealer will always be purchasing exempted goods directly from the manufacturer, but the purchase can be from another dealer, etc. Mr. Urs submits that the Additional Commissioner was wrong in taking the view that as the goods did not conform to the description as indicated in entry 3 of the Fifth Schedule, as no such condition is stipulated against the goods as per the descri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f payment of additional duty and production of proof of the same by the dealer was not an issue before the Joint Commissioner nor decided by the first revisional authority, but whether it could be forming part of an exemption claim and if so, being an aspect of exemption, the Additional Commissioner could make it a subject-matter of his revisional jurisdiction though the very aspect is not examined by the Joint Commissioner being a debatable point and as either view is possible, depending more on the facts and circumstances of a given case, we do not propose to examine the question in any great detail on this aspect. 15.1 We do not propose to examine this question further as we find that the order passed by the Additional Commissioner obviously proceeded on such premise, but the examination by the Commissioner being on the question relating to proof of payment of the additional duties of excise and it is only with regard to this aspect, the show-cause notice also had been issued by the Additional Commissioner and decided by him as we find that the issue of show-cause notice and the order passed by the Additional Commissioner to direct the assessing authority to redo the assessm ..... 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