9911796707
TMI Blog2015 (2) TMI 1015X X X X Extracts X X X X X X X X Extracts X X X X ..... s Tax Act, 1959. The Assistant Commissioner in exercise of the powers pursuant to Section 57(1) had proceeded with the revisional proceeding and has passed order in the same. The revision is an independent power of an authority calling for and examining record and orders passed by an officer subordinate and to pass such order as he may think just and proper. Appeal by the assessee had been filed since him being not satisfied by certain other disallowances. As such, orders in respect of certain other disallowances in the appeal pending before the Assistant Commissioner of Sales Tax, Kolhapur would be hardly a matter which concerns the matter in revision. There is no decision by the appellate authority in said appeal which has been filed by the assessee aggrieved by other disallowances and much less there is any matter - such, exercise of revisional powers by the co ordinate authority would not be trammeled by pendency of appeal. Decision in Santoshi Tel Utpadak Kendra (1978 (7) TMI 233 - BOMBAY HIGH COURT) would hardly have any application in the present set of facts and circumstances. Tribunal is justified in holding that there is no error in exercise of powers u/s. 57 by the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation of the provisions contained in the 1979 Scheme of Incentives and the Notification Entry 136 under section 41 of the Bombay Sales Tax Act, 1959, the Tribunal was legally justified in holding that the appellant was not entitled to the exemption benefits in the context of manufacture of brass sheets for the reason of the brass sheets being not specifically mentioned in the class of manufactured goods as specified in the eligibility certificate? 2. The facts giving rise to the present reference may be succinctly given as under. The assessee M/s. Jitendra R. Gandhi was engaged in the manufacture of and sale of stainless steel utensils, aluminum utensils, milk cans etc. and is a registered dealer under the relevant provisions of the Bombay High Court Bombay Sales Tax Act, 1959 (for short, the Bombay Act ). The manufacturing unit of the assessee is situated at MIDC, Kherdi in Taluka- Chiplun, District-Ratnagiri which has been declared as a backward area for the purposes of grant of sales tax incentives, under the Package Scheme of Incentive, 1979. Under the same, the assessee has been granted Eligibility/Entitlement Certificate, conferring benefits of exemptions pursuant to Not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the generic term copper , it being major component of brass. The Assistant Commissioner (Administration) was not persuaded by the explanation given and as such went on levying tax on sales as well as purchase in respect of the manufactured brass sheets etc. albeit granting set off under Rule 41F of the Bombay Sales Tax Rules, 1959 in the context of the purchase tax liability. Consequently interest under Section 36(3)(b) was also levied. Resultantly ₹ 1,80,060/- for the period 23.10.1987 to 31.3.1989 and ₹ 2,95,420/- for the period 1.4.1989 to 31.3.1990 were demanded. The aggrieved assessee went in appeal against aforesaid orders. Under his order dated 1.11.1994, the Deputy Commissioner (Appeals) dismissed the appeals upholding the orders passed in the revision. The aforesaid dismissal orders were subject matter of Second Appeals bearing Second Appeal No.1633 and 1634 of 1994. The second appeals came to be decided on 22.12.2000 maintaining the orders passed in the revision resulting in confirmation of the disallowance of exemption in respect of manufacture and sale of brass sheets. The Tribunal, however, was pleased to grant partial remission in interest for both t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... far as the said appeals are filed against any order passed in first appeal directing payment to be made of any sum with or without security for admission of the first appeal, shall abate: Provided that, such abating of the second appeal shall not affect the stay order, if any, granted by the Appellate Authority or the Tribunal against the original order, against which first appeal has been filed and is pending. (7) Subject to such rules of procedure as may be prescribed, every appellate authority (both in the first appeal and the second appeal) shall have the following powers :-- (a) in an appeal against an order of assessment, it may confirm, reduce, enhance or annul the assessment; or it may set aside the assessment and refer the case back to the assessing authority for making fresh assessment in accordance with the direction given by it and after making such further inquiry as may be necessary; and the assessing authority shall thereupon proceed to make such fresh assessment and determine, where necessary, the amount of tax payable on the basis of such fresh assessment; (b) in an appeal against an order imposing a penalty, or interest the appellate authority may confirm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision under this section shall be entertained upon application. (3) No order shall be passed under this section which adversely affects any person, unless such person has been given reasonable opportunity of being heard. 11. Mr. Surte places reliance on a decision of the Supreme Court reported in 1979 STC (Vol.43) 307 Santoshi Tel Utpadak Kendra vs. The Deputy Commissioner in Civil Appeal No.968 of 1978 arising from a Judgment of this Court. He refers to following extracts from said decision. Now the sub-section speaks of an appellate authority both in the first appeal and the second appeal . It is quite clear, therefore, that the appellate powers detailed in Clause (a) have the same amplitude in a second appeal as in a first appeal. An appellate authority disposing of a first appeal has power to enhance the assessment. So has appellate authority in a second appeal. We may also point out that when an appellate authority is considering a second appeal a first appellate order, it is examining an order which can be broadly described as an order of assessment. It is a final order disposing of an appeal which, in a sense, is a continuation of the assessment. A second appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment orders dated 01/11/1991 in respect of two periods 23/10/1987 to 31/3/1989 and 1/4/1989 to 31/3/1990, a coordinate authority would not tread upon same assessment orders, being considered by another authority of the same peer. Therefore, according to him the Assistant Commissioner (Administration) Kolhapur had been in error in revising the assessment orders dated 1/11/1991. 13. Mr. Surte further submits that the revisional authority was in error in declining the benefit of exemption in respect of manufacture and sale of brass sheets during the two periods referred to herein above earlier. He submits that the class of goods makes reference to copper. Brass is an alloy of copper and zinc and major component of the same is copper and as such, brass sheets would qualify to be considered as product of copper making the assessee eligible for exemption, copper being referred to under eligibility certificate. 14. Mr. Surte makes an attempt to impress upon that since eligibility/ entitlement certificate makes reference to rolling for mill for copper , the phrase will have to be liberally construed. Basic intention underlying the granting of exemption from levy of sales tax under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner Nagpur issued notices to the assessee seeking explanation as to why the orders passed by the Assistant Commissioner should not be revised under Section 57 of the Bombay Act. The assessee objected to the exercise of revisional powers by the Dy. Commissioner during the pendency of the second appeals before the Tribunal. However, the objection was overruled by the Dy. Commissioner against which the assessee filed two appeals before the Tribunal and Tribunal had dismissed the appeals. The assessee had then filed writ petition before this Court, against rejection of its preliminary objection and the orders passed by the Tribunal dismissing his appeal. He, therefore, submits that in the state of such facts the Supreme Court had decided the case of Santoshi Tel Utpadak Kendra (supra). He further points out that in the present case such a situation has not arisen at all. No matter had been pending before the superior authority at appellate stage as in said case. He thus submits that the decision of Supreme Court in Santhosi Tel Utpadak Kendra (supra) would have no application in the facts of the present case. 18. He submits that there is no embargo in the facts and circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds other than trimmed or untrimmed circles of copper intended to be used for manufacture of utensils attracting nil rate of duty. In that case brass appears to have been considered different from copper. It was considered as goods would fall under entry SL. No.200 carrying nil rate of duty and not SL. No. 201 in respect trimmed or untrimmed circles of copper intended to be used for handicrafts. He therefore, submits that brass cannot be considered as an item of copper in any way. In the very same citation, the Supreme Court has observed in Paragraph 7 as under. 7. We may also point out at this stage that it is well settled position in law that exemption Notification has to be read strictly. A notification of exemption has to be interpreted in terms of its language. Where the language is plain and clear, effect must be given to it. While interpreting the exemption notification, one cannot go by rules of interpretation applicable to cases of classification under the Tariff. Tariff items in certain cases are required to be interpreted in cases of classification disputes in terms of HSN, which is the basis of the Tariff. 21. From the factual position and the submissions advance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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