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TMI Blog2015 (11) TMI 937X X X X Extracts X X X X X X X X Extracts X X X X ..... d also proposed to levy penalty under section 65 of the Assam General Sales Tax Act. The petitioner aggrieved by the said order, filed an appeal before the appellate authority. The appeal was dismissed. The petitioner went to the Board of Revenue. The Board of Revenue also dismissed the appeal, hence, these writ petitions. 2. Sri Ashok Saraf, senior counsel for the petitioners, submitted that the products purchased from the Oil India and Gas Authority are taxable products; therefore, sales tax has been paid to the said sellers. The Oil India and Gas Authority were not the specified oil companies till the year 2002. The provisions of section 8 exempts from paying sales tax when the purchase is made by one oil company from the other oil company. In such a case, the purchasing company can levy tax when its sales to the dealers. In the instant case, the Oil India and Gas Authority not being specified oil companies for the purchases made, the petitioner had paid the sale tax as required in Schedule II. When the petitioners sold the products within Assam to the dealers, the tax paid to its sellers was recovered from the dealers and some excess tax was also collected. However, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not open to say that he is not collecting but is only recouping. We find ourselves unable to accept the reasoning given by the High Court in Metal Sales Corporation's case: [1983] 52 STC 392 (Mad). Mere case of a different nomenclature or language cannot be allowed to defeat the clear provision of the section. If the reasoning of the High Court in Metal Sales Corporation case: [1983] 52 STC 392 (Mad) is accepted, section 22 would be rendered nugatory. It would enable dealers to collect by just terming the collection as recoupment, recovery, etc. The recoupment, recovery, collection is nothing else but the amount paid by the assessee to its seller towards the tax liability of the seller. Further recovery, recoupment or collection from their buyers is what is prevented by section 22. In our view, the High Court is absolutely right in the reasoning given in the impugned Judgement. The law laid down in Metal Sales Corporation's case: [1983] 52 STC 392 (Mad) is not good law and stands overruled. Accordingly, the special leave petitions stand dismissed. There will be no order as to costs." 5. In view of the above submission, it was strenuously contended that the order pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lected from him:- Provided that the provisions of section 30 shall apply for refund of such amount. 8.... Explanation 2:- When an oil company, as may be specified in the rules, sells within the State of Assam its products, as mentioned in serial numbers 65, 66, 67, 68, 69 and 70 in Schedule II to any other oil company registered under the Assam General Sales Tax Act, 1993, (Act XII of 1993) for the purpose of resale of the same within the State by such purchasing oil company, such inter se sale between the oil companies shall not be treated as first point of sale for the purpose of levying tax and tax shall be levied, subject to such conditions as may be prescribed, on the purchasing oil company when they re-sale the goods within the State. 12 (1). Where a person after purchasing goods covered by Schedule II under clause (a) of sub-section (1) of section 8 sells such goods in such manner as mentioned in the Explanation to the aforesaid clause and if the price charged on such resale exceeds forty percentum of the original sale or purchase price, in respect of such goods or class of goods, the resale of such goods by such person shall be deemed as first point of sale within t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the said contention and states that all the excess amount, so collected, has not been remitted. Be that as it may, the fact remains that whether in a situation like this, can the proceeding under section 65A be initiated by the assessing authority? The sub-section (1) of section 65A categorically declares that no person shall collect tax of any sum by way of tax in respect of sales of any goods on which no tax is payable under the provisions of this Act. 9. Sub-section (3) of section 65A further states that any person, not being dealer liable to pay tax under this Act, collects any sum by way of tax, or being a registered dealer collects any sum by way of tax in excess of the tax payable by him, or otherwise collects tax in contravention of the provisions of sub-section (1), shall be forfeited to the State Government and any order of forfeiture by the assessing officer shall publish the same. Further, sub-section (4) declares that any tax collected in contravention of sub-section (1), the assessing authority could impose penalty on the person, if he has willfully contravened the provisions. It may be that under sub-section (3) there is restriction on the person not being a deale ..... X X X X Extracts X X X X X X X X Extracts X X X X
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