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TMI Blog2016 (4) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... ansportation charges not received by the respondent from Gas Authority of India Limited (GAIL) cannot be included as part of the sale price of the gas sold by the respondent to GAIL. Levy of tax - Entitlement for exemption notifications issued under Section 49(2) of the Act, 1969 as well as under section 5(2) of the VAT Act, 2003 - Sale of kerosene and LPG by the ONGC to various OMCs and inter-State sale of LPG in bulk sold outside the State - The relevant entries in respect of the exemption claimed under the VAT Act, 2003 are entry Nos. 53 and 69 divided into two parts 1) for the period between 11.06.2008 to 02.10.2008 and 2) for the period between 03.10.2008 onwards and with respect to the Central Sales Tax is entry No. 55. As per the exemption notification issued under section 49(2) of the Act, 1969 and so long as the Act, 1969 was in force, on sale of kerosene for domestic use sold for Public Distribution System the whole of the sales tax was exempted and on sale of LPG (domestic) no tax exceeding the rate of 14% can be levied - Held that:- the entries in question of the Schedule to the respective exemption notifications issued under the Act, 1969 and VAT Act, 2003 are required ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued under section 5(2) of the VAT Act, 2003, the ONGC shall be entitled to the exemption from payment of the whole of the tax under the VAT Act, 2003, pre 02.10.2008 which was prevailing at the relevant time. So far as post 03.10.2008 the entry amended and as per amended entry, the exemption is provided for the sales of LPG for domestic use by the consumers of the State which is not the present case, therefore, the ONGC shall not be entitled to the exemption from payment of tax under the VAT Act, 2003. Even the ONGC is not entitled to exemption from tax on the inter-State sales of LPG, effected by the ONGC from the Stat of Gujarat to other States as the exemption is available on inter-State sales of LPG for domestic use by the consumers of the State only and liable to pay VAT and is not exempt from more of the tax as per Entry No.16 of the Schedule to the Exemption Notification dated 31.03.2006, as amended and issued under section 5(2) of the GVAT Act. Levy of penalty - Section 45(2)(c) of the Act, 1969 - Held that:- As per sub-section (2) of section 45 of the Act, 1969, the penalty is leviable if it appears to the Commissioner, a dealer has concealed the particulars of any transac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shen, Asstt. Government Pleader For the Respondent : Mr N Venkatraman, Sr. Adv. With Mr Nitin K Mehta, Adv. JUDGMENT ( Per : Honourable Mr. Justice M. R. Shah ) [1.0] As common question of law and facts arise in this group of Tax Appeals and Special Civil Application, all these Tax Appeals and Special Civil Application are decided and disposed of by this common judgment and order. Tax Appeal No.384/2014 [2.0] Feeling aggrieved and dissatisfied with the impugned judgment and order dated 19.09.2013 passed by the learned Gujarat Value Added Tax Tribunal, Ahmedabad (hereinafter referred to as "Tribunal") in Second Appeal No.103/2010 in respect of the period 2004-05, the original respondent - State of Gujarat through Commissioner of Commercial Tax has preferred the present Tax Appeal No.384/2014. Tax Appeal No.380/2014 [2.1] Feeling aggrieved and dissatisfied with the impugned judgment and order dated 19.09.2013 passed by the learned Tribunal in Second Appeal No.91/2010 in respect of the period 2005-06, the original respondent - State of Gujarat through Commissioner of Commercial Tax has preferred the present Tax Appeal No.380/2014. Tax Appeal No.1358/2014 [2.2] Feel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal No.435/2014 [2.9] Feeling aggrieved and dissatisfied with the impugned judgment and order dated 19.09.2013 passed by the learned Tribunal in Second Appeal No.328/2012 in respect of the period 2007-08, the original respondent - State of Gujarat through Commissioner of Commercial Tax has preferred the present Tax Appeal No.435/2014. Tax Appeal No.436/2014 [2.10] Feeling aggrieved and dissatisfied with the impugned judgment and order dated 19.09.2013 passed by the learned Tribunal in Second Appeal No.396/2012 in respect of the period 2006-07, the original respondent - State of Gujarat through Commissioner of Commercial Tax has preferred the present Tax Appeal No.436/2014. Tax Appeal No.437/2014 [2.11] Feeling aggrieved and dissatisfied with the impugned judgment and order dated 19.09.2013 passed by the learned Tribunal in Second Appeal No.395/2011 in respect of the period 2006-07, the original respondent - State of Gujarat through Commissioner of Commercial Tax has preferred the present Tax Appeal No.437/2014. Tax Appeal No.468/2014 [2.12] Feeling aggrieved and dissatisfied with the impugned judgment and order dated 19.09.2013 passed by the learned Tribunal in Second Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivil Application No.5182/2014. [3.0] At the outset it is required to be noted that in respective appeals, all filed by the State of Gujarat, following substantial questions of law arise. 1) Whether in the facts and circumstances of the case, the Tribunal was right in law in holding that processing and transportation charges not received by the respondent from Gas Authority of India Limited (GAIL) cannot be included as part of the sale price of the gas sold by the respondent to GAIL? 2) Whether, in the facts and circumstances of the case, the Tribunal was right in law in holding that the sale of kerosene by the respondent herein to Oil Marketing Companies falls within the meaning of the phrase "Sales of Kerosene for domestic use sold for public distribution system" and is therefore exempt from the whole of tax under Entry 33 of the schedule to the notification issued under section 49(2) of the Gujarat Sales Tax Act, 1969 and is otherwise exempt from the whole of tax under Entry 173 of the notification issued under section 49(2) of the Gujarat Sales Tax Act, 1969, and hence no tax can be levied on the discount amount of such sale? 3) Whether in the facts and circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n respective appeals the dispute is with respect to erstwhile Entry Nos.33, 70 and 173 of the Schedule to the Exemption Notification issued under section 49(2) of the Act, 1969 as well as the relevant Entry Nos.53 and 69 of the Schedule to the Exemption Notification No.(GHN35) VAT-2006-S. 5(2)(a)TH, dated 31.3.2006, issued under section 5(2) of the Gujarat Value Added Tax Act, 2003 (hereinafter referred to as "VAT Act") as well as Entry No.55 under the Central Sales Tax Act, 1956 and the goods in question are kerosene and the Liquified Petroleum Gas (LPG) for domestic use. The relevant entries are as under: Sr. No. Class of Sales or Purchases Exemption Whether of whole or Part of tax _________________ Ref. to Schedule Entry for goods given exemption Conditions 33. Sales of Kerosene for domestic use sold for Public distribution system. Whole of Sales Tax _________________ II A 33 Nil 70. Sales of liquefied Petroleum Gas (Domestic) To the extent to which the amount of sales tax exceeds fourteen paise in the rupee _________________ II A 123 Nil 173. Sales of petroleum products including liquefied petroleum gas, manufactured or purchased or imported from a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on India Ltd., has been formed for the development of (i) Panna Mukta and (ii) Tapti, Oil and Gas Fields located in Bombay High, both offshore India, which has, in turn, signed a Production Sharing Contract ('PSC' for short) with the Government of India, wherein, British Gas has been designated as the Operator for undertaking the exploration, drilling, production and selling facilities on behalf of the Joint Venture. It appears that the Natural Gas in sour form obtained through exploration activity is taken from Panna Mukta Gas Field to ONGC, Hazira, through its own pipeline network connected to various Gas Fields in Bombay High for its further transmission up to the Sweetening Plant of ONGC based at Hazira, wherein all the hydrocarbons from the sour Gas are separated to produce natural gas. That for the aforesaid processes, i.e. processing and transportation, the Joint Venture pays processing and transportation charges to ONGC, whereby natural gas gets converted into a deliverable state at the time of the sale thereof to GAIL. Apart from Natural Gas, from the above referred Oilfields, ONGC also gets Crude Oil and LPG. That the part of the said Crude Oil is being refined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion system, there was exemption from payment of whole of the tax. As per Entry No.53 as per the Notification dated 19.01.2007 for the period between 19.01.2007 to 10.04.2011, on sale of goods declared as of special importance in section 14 of the Central Sales Tax Act, 1956, there was an exemption to the extent to which amount of tax exceeds 4 paise in the rupee. As per Entry No.69 for the period between 11.06.2008 to 02.10.2008 and as per Notification dated 10.06.2008 on sales of LPG for domestic use, there was an exemption for whole of the tax and as per the Notification dated 03.10.2008 as per Entry No.69 from 03.10.2008 onwards on sales of LPG for domestic use by the consumers of the State i.e. the exemption provided for whole of the tax. That as the ONGC was of the opinion that on sales of kerosene and LPG (domestic) sold to the OMCs, they are entitled to the exemption from payment of sales tax both under the Gujarat Sales Tax Act, Gujarat Value Added Tax Act as well as Central Sales Tax Act as provided under the aforesaid entries as they are forming part of the Public Distribution System and therefore, not liable to pay the sales tax, the dispute arose between the ONGC and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin the meaning of the phrase "Sales of liquefied petroleum gas (domestic) as used in Entry 70 of the notification issued under section 49(2) of the Gujarat Sales Tax Act, 1969, and hence no tax exceeding 14 paise in the rupee can be levied on the Liquefied Petroleum Gas sold by the respondent in bulk to Oil Marketing Companies; (iii) that the sale of kerosene by the opponent herein to Oil Marketing Companies falls within the meaning of the phrase "Kerosene sold through the public distribution system" and is therefore exempt from the whole of tax under Entry 53 of the notification issued under Section 5(2) of the Gujarat Value Added Tax Act, 2003, read with Section 8(1) of CST Act; and (iv) that the inter-State sales of LPG, effected by the appellant from the State of Gujarat to other States qualify for total exemption from tax only on the ground that "intra-State sales of LPG for domestic use by the consumers of the State", is exempt from whole of tax as per Entry 69 of the schedule to the exemption notification dated 31.03.2006, as amended and issued under section 5(2) of the GVAT Act. That by impugned judgment and orders the learned Tribunal has also s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase "Kerosene sold through the public distribution system" and is therefore exempt from the whole of tax under Entry 53 of the notification issued under Section 5(2) of the Gujarat Value Added Tax Act, 2003, read with Section 8(1) of CST Act? 7) Whether, in the facts and circumstances of the case, the Tribunal was right in law in holding that, the inter-State sales of LPG, effected by the appellant from the State of Gujarat to other States qualify for total exemption from tax only on the ground that "intra-State sales of LPG for domestic use by the consumers of the State", is exempt from whole of tax as per Entry 69 of the schedule to the exemption notification dated 31.03.2006, as amended and issued under section 5(2) of the GVAT Act. 8) Whether, in the facts and circumstances of the case, the Tribunal was right in law in holding that the opponent is not liable to pay any penalty under Section 9(2A) of the Central Sales Tax Act and under Section 34(12) of the Gujarat Value Added Tax Act, 2003 and the Tribunal was right in law in directing the assessing officer to rectify the assessment order for the issue relating to interest charged if there is any calculati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not liable to pay sales tax on the transportation and processing charges, since neither it has raised the said charges against GAIL nor does GAIL pay the said charges to ONGC. It is submitted that however what is being lost sight is the fact of the receipt of the said charges by ONGC in respect of the goods in question before the delivery thereof and that therefore the said charges are necessarily required to be considered as part of or included in the 'sale price' as per section 2(29). It is submitted that merely because the GAIL does not make payment of charges to ONGC, the very fact that ONGC gets reimbursement towards processing and transportation charges of LPG sold in bulk to GAIL. In support of his above submissions, learned Advocate General has heavily relied upon the decision of the Division Bench of this Court in ONGC vs. Commissioner of Sales Tax in Sales Reference No.3/1998. Making above submissions it is requested to answer the aforesaid substantial question of law No.1 in favour of the Revenue and against the respondent - assessee. [6.3] It is further submitted by the learned Advocate General appearing on behalf of the State that even otherwise even on mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to fair price shop owners, whereas other type of Kerosene, i.e. colourless kerosene, is meant for industrial and commercial purposes. [6.5] It is submitted that as provided in clause 3 of Order, 1993, restriction on use of kerosene does not apply to ONGC, since kerosene supplied under Public Distribution System cannot be used for any purpose other than cooking and illumination, which restrictions are very much applicable to the entities which are part of Public Distribution System. It is submitted that in the present case when ONGC sells kerosene to OMCs, there is no declared price in vogue, which is clearly established by virtue of the decision of this Court in respect of the very ONGC itself, reported in (2015) 79 VST 64. It is submitted that as held by this Court in the aforesaid decision when ONGC raises invoices at the time of actual supply of petroleum products to OMCs, price indicated there was merely provisional, temporary and adhoc and always subject to finalization once the Government of India issues final directives. It is submitted that it is further held that It is this price realized which would be the sale price and not its cost price. It is submitted that when OMCs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g statute and/or the parameters to be applied by the Court while interpreting a taxing statute. 1. Commissioner of Sales Tax vs. Modi Sugar Mill Ltd. AIR 1961 SC 1041 (Para 11) 2. Novopan India Ltd. vs. CCE, Hyderabad (1994) Suppl. 3 SCC 606 (Para 16) 3. Saraswati Sugar Mills Ltd. vs. Commissioner of C. Ex. Delhi-III (2011) 270 ELT 465 (SC) (Para 7) [6.8] It is further submitted by Shri Trivedi, learned Advocate General appearing on behalf of the State that in the present case the ONGC claims exemption in respect of kerosene under the erstwhile Entry 33 and in respect of LPG under the erstwhile Entry 70 and alternatively under Entry 173 of the Schedule to Exemption Notification issued under section 49(2) of the erstwhile Gujarat Sales Tax Act, 1969 and under Entries 53 and 69 of the Schedule to Exemption Notification under section 5(2) of the Gujarat Value Added Tax Act, 2003. It is submitted that under the applicable State Sales Tax Legislations, the tax is imposed on transaction of 'sale' and not on 'goods'. In other words, charging event of taxation under the said legislations is 'sale' of goods from one party to another. It is submited that no soo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not entitled to exemption from payment of Sales Tax in respect of Kerosene under Entry 33 in-as-much as ONGC sells Kerosene to OMCs in bulk and not in Public Distribution System for resale thereof to various dealers. Similarly, ONGC is not entitled to the benefit of Entry 70 in respect of LPG inasmuch as, sale of LPG in bulk by ONGC to OMCs is for the purpose of resale thereof and not for domestic purpose. It is submitted that similarly, the ONGC is also not entitled to the benefit of the aforesaid Entry 53 in respect of Kerosene sold by it in bulk to OMCs for the purpose of resale thereof, since the said sale in favour of OMCs cannot, by any stretch of imagination, be said to be sale through Public Distribution System. It is submitted that similarly, ONGC is also not entitled to the benefit of Entry 69 referred to above inasmuch as, LPG being sold by it to OMCs in bulk is for resale thereof to various dealers and distributors and not for domestic use. It is submitted that so far as Entry 173 of the Schedule to the Exemption Notification in question is concerned, the same seeks to grant full exemption from tax liability, but subject to certain conditions. It is submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... too 'by consumers of the State' and secondly, sub-section (2A) of section 8 is now no more on a statute book. [6.13] It is submitted that apart from above, one is also required to keep in mind the provision of sub-section (1A) of section 6 of the Central Sales Act, 1966. It is submitted that as per the said provision, inter-State sale of a particular commodity is liable to sales tax, even though, intra-State sale of the very commodity is exempt from tax liability under the applicable State Sales Tax law. [6.14] Now, so far as the issue with respect to the inclusion of processing and transportation charges received by ONGC as part of the sale price of LPG sold by ONGC to GAIL is concerned, Shri Trivedi, learned Advocate General has heavily relied upon the definition of 'sale' and 'sale price' in the erstwhile Gujarat Sales Tax Act. It is submitted that in the present case the ONGC claims that it is not liable to pay sales tax on the transportation and processing charges, since neither it has raised the said charges against GAIL nor does GAIL pay the said charges to ONGC. It is submitted that however, what is being lost sight is the fact of the receipt of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity for levy of interest flows from the above provisions of the GST Act and the GVAT Act and that therefore, the same cannot be considered as without authority of law, as held by the learned Tribunal. [6.17] It is further submitted by Shri Trivedi, learned Advocate General appearing on behalf of the State that that even the learned Tribunal has materially erred in deleting the penalty under section 45(2) (c) of section 45(6) of the GST Act and under section 38(2) of the GVAT Act. It is submitted that in the present case the ONGC was liable for the penalty inasmuch as (i) it had failed to include the amount of processing and transportation charges as a part of sale price of gas sold; (ii) it has wrongly availed of the benefit of exemption of Entries 33 and 173 with reference to sale of Kerosene to OMCs; (iii) it wrongly availed of the benefit of concessional rate of tax with reference to LPG under Entry 70 sold by it to OMCs and not for domestic purpose; (iv) it wrongly availed of the benefit of exemption under Entries 53 and 69 with reference to sale of Kerosene and LPG in bulk to OMCs, and (v) it wrongly availed of full exemption in respect of sale of Kerosene and LPG, both in b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entered into only between the Joint Venture partners and ONGC. GAIL is not a party to this contractual arrangement. f. Consequently, the invoice for consideration for rendition of transportation and processing services were raised by the respondent only on the Joint Venture partners. For rendition of those services the respondent had also charged service tax, once the activity was brought within the Finance Act, 1994 over and above the service consideration. The consideration is paid wholly by the Joint Venture partners. g. It is important to submit that GAIL is not a party, even remotely to any of these arrangement and activities. Neither the Joint Venture nor the respondent had charged or billed GAIL for these services. These charges had already formed part of the sale priced fixed and billed by the Joint Venture partners as per the Production Sharing Contract terms and billed on GAIL by Joint Venture partners on which appropriate GST/VAT has been charged. h. GAIL had settled the consideration including the taxes and the taxes had appropriately been remitted to the state government." It is vehemently submitted that the Tribunal had gone into said issue in detail and had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. e. Finally this issue has been raised by the revenue only for two Assessment Years namely 2004-05 and 2005-06. This issue has not been raised for the subsequent years even though the transactions have remained the same. Thus the appellant has accepted the claim of the respondent principally." Making above submissions it is requested to answer the aforesaid substantial question of law No.1 against the Revenue and in favour of the assessee. [7.2] It is vehemently submitted by Shri Venkatraman, learned Senior Advocate that another question that arises for consideration is, whether on supply of kerosene and LPG to the OMCs, ONGC is eligible for tax exemption, both under the Gujarat Sales Tax Act, 1969 and under the VAT Act. [7.3] It is submitted by Shri Venkatraman, learned Senior Advocate appearing on behalf of the respondent ONGC that while interpreting the respective exemption entries and considering the availability of exemption under the relevant tax exemption entries what is required to be considered is whether the ONGC while selling the kerosene and LPG can be said to be part of the Public Distribution System or not? While selling the kerosene by ONGC to OMCs, ONGC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... location to each retail ration shops. 7. Monthly Distribution Plan Meeting is held wherein representatives of all Oil Producing Companies meet and finalize the company wise supply of petroleum products to Government Oil Companies. 8. Indents placed by Government Oil Companies. 9. Goods Supplied to Government Oil Companies. 10. Government Oil Companies submit actual upliftment against approved allocation to Petroleum Planning and Analysis Cell of Ministry of Petroleum and Natural Gas. 11. Government Oil Companies submit claims for subsidy. 12. Petroleum Planning and Analysis Cell of Ministry of Petroleum and Natural Gas submits to the Ministry for budgetary appropriation of subsidy. 13. Government Oil Companies gives end use certificate. In support of his above submission, Shri Venkatraman, learned Senior Advocate appearing on behalf of the respondent - ONGC has relied upon certain communications issued by the Ministry of Petroleum and Natural Gas to the Director General, Petroleum Planning and Analysis Cell for allocation of kerosene for public distribution for a specified quarter; State wise allocation; communication by Petroleum Planning and Analysis Cell issued to the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as best to subserve the common good". It is submitted that the said Article deals with two vital aspect in producing an Egalitarian Society. It is submitted that it mandates when it comes to material resources of a community, the policy relating to ownership, control and its distribution should be so framed as to achieve its best and to subserve the common goods. It is submitted that in the case of Reliance Natural Resources Limited vs. Reliance Industries Limited reported in (2010) 7 SCC 1 that while dealing with the concept of "public trust doctrine", the Hon'ble Supreme Court has held that "the plea of the entire country have a stake in natural gas and its benefit has to be shared by the whole country". It is submitted that while dealing with the Public Trust Doctrine, it is held that resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life." That the doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. That the State is the Trustee of all the natural resour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l use. (5) In the case of kerosene, respondents have supplied the entire lot exclusively for public distribution. In the case of LPG, it has been supplied both for domestic and for nondomestic but on identified allocable basis. Since the assessable values are different, even at the threshold, before the goods are dispatched by the respondent, the quantities are identified for domestic and nondomestic uses. (6) Both in the case of kerosene and LPG, oil marketing companies have produced end use certificates to the effect that the products are supplied for domestic use only. This aspect is not under dispute in the whole proceedings. (7) The supplies of kerosene and LPG for domestic use are governed by subsidy schemes in the form of price discount and therefore the entire transaction is monitored by MoPNG. (8) It is a constitutional obligation on the part of the State to distribute natural resources in the best possible way and to subserve the common good. (9) As part of Directive Principles of State Policy, it is a constitutional obligation on the State to interfere and influence the fixation of prices to ensure natural resources are made available at minimum prices. (10) As par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kerosene through Public Distribution System and similarly LPG for domestic use include LPG supplied in bulk by Refiners like the respondent to Oil Marketing Companies. Making above submissions and relying upon above decisions it is vehemently submitted by Shri Venkatraman, learned Senior Advocate appearing on behalf of the respondent - ONGC that while selling kerosene & LPG by ONGC to OMCs, ONGC is part of Public Distribution System and therefore, is entitled to the exemption under the Gujarat Sales Tax Act as well as under the Gujarat Value Added Tax Act. [7.10] Shri Venkatraman, learned Senior Advocate appearing on behalf of the respondent - ONGC has vehemently submitted that the basic three Rules of interpretation of exemption notifications are (a) plain or literal construction; (b) purposive or liberal construction and (c) a combination of literal construction at the threshold to find out basic eligibility followed by liberal construction in extending the benefit. It is submitted that taking into consideration the whole conspectus referred to above, the supply of Kerosene and domestic LPG would, without any difficulty, pass even the first test viz. plain or literal constructi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and "through" may not really matter and for any reason, if the expression "through" is sought to be interpreted as the supplying entities should form part of the Public Distribution System, even then, that test would get satisfied. It is submitted that for any reason, the expression 'through' would demand the ONGC to be part of the supply chain of Public Distribution, then the ONGC would squarely satisfy such a test. It is submitted that as submitted hereinabove and considering the supply chain of Kerosene and end use of the Kerosene by OMCs for Public Distribution System, ONGC is part of the Public Distribution System and therefore, applying the plain or literal construction, the ONGC would be entitled to benefit of exemption even for sale of Kerosene through Public Distribution System under the Gujarat VAT regime. [7.11] It is alternatively submitted that if for any reason there is any doubt or ambiguity and the plain or literal construction fail, the ONGC would pass the alternative test i.e. the purposive or liberal construction. It is submitted that the Division Bench of the Karnataka High Court in the case of Bharat Petroleum Corporation Ltd. vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... responsibility is cast on the courts to see that this section of the Society gets their due by the process of purposive interpretation of such notification". On the aspect of purposive construction of an exemption notification, Shri Venkatraman, learned Senior Advocate appearing on behalf of the ONGC has also relied upon the decision of the Madras High Court in the case of R. Ramanujam Chettiar vs. The Commissioner and Secretary to the Govt. of Tamil Nadu reported in AIR 1982 (Mad) 261. It is submitted that while dealing with Sugar as an essential commodity and how State has to fulfill its constitutional obligation under the Directive Principles of State Policy, in the said decision it is held that "when distributing levy sugar, it is obligatory on the State to focus on the capacity of the purchasers in the correct perspective, bearing in mind the circumstances in which the weaker sections of the society are placed und the necessity of providing them their basic requirements in life at a fair price. When an essential commodity is required for sustenance of such people, with their meager resources, they cannot get it, unless priced less and reserved for them in larger qua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n illusory and has the effect of giving by one hand and taking away by the other should be avoided. Where the words of exemption are not defined, the proper course is not to give them the widest meaning, but find out the true meaning with reference to the context, by reading the exemption notification as a whole and by keeping in view, the object and purpose of the exemption and consequences of different interpretation". It is therefore submitted that applying the above principles, if the intention is discerned, and a contextual interpretation is given, the supplies of Kerosene for Public Distribution System and supply of LPG for domestic use both under Gujarat Sales Tax Act and Gujarat VAT Act would qualify for exemption. [7.13] Now, so far as Central Sales Tax on inter-State CST Sales of kerosene and LPG and whether on inter-State sales of kerosene and LPG there shall be exemption or not, it is vehemently submitted by Shri Venkatraman, learned Senior Advocate appearing on behalf of the ONGC that it is the case of the revenue that the inter-State CST sales of kerosene and LPG would not qualify for exemptions, or same rate of tax as is applicable under the GST/GVAT. It is re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereby if a particular sale is held not to be chargeable under a particular state law, the same would still be liable for tax under CST Act and thus, this sub-section does not cover a situation where tax is leviable or chargeable on a sale under state laws, but is exempted or has NIL rate of duty. [7.15] Shri Venkatraman, learned Senior Advocate has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Union of India v. Azadi Bachao Andolan & Anr. reported in (2004)10 SCC 1; Kaniska Trading v. Union of India reported in (1995)1 SCC 274 and Wallace Four Mills Co. Ltd. vs. Collector of Central Excise, Bombay reported in (1984)4 SCC 592 to demonstrate that the exemption would not mean that the entity is not liable or leviable to tax. [7.16] It is further submitted that once it is held that on a particular sale, tax is leviable under section 6 of CST Act, one has to determine the rate of tax applicable for calculating liability of tax on inter-State sales. It is submitted that section 8 deals with rate of tax on sales in the course of inter-State trade and commerce. It is further submitted that section 8(1) states that a dealer "shall be liable to pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion under section 5(2) of the VAT Act applies to sale of LPG for domestic Use. Therefore, rate of tax on local sales of LPG for domestic use stands reduced to 5% [including additional tax] 3. Thereafter, on 10.06.2008 the State Government issued notification for total exemption from tax for sale of LPG for domestic use. Entry 69 came to be inserted for this purpose. Thus, the rate of tax on local sales of LPG for domestic use became Nil with effect from 11.06.2008. 4. Thereafter on 03.10.2008 entry 69 came t0 be amended. The words "for use by the consumers of the State" came to be added in the entry. But after addition of these words, the rate of tax on LPG for Domestic use is not altered. It has remained Nil. Therefore, the amendment in entry 69 has no effect over applicable rate of tax on local sale of LPG for domestic use. It has remained Nil. Shri Venkatraman, learned Senior Advocate has further submitted that pursuant to the exemption the rate of tax on LPG Kerosene becomes nil under GVAT and Accordingly, as per section 8(1), the rate for the purpose of calculating tax under CST Act also becomes nil/ Exempt. It is further submitted that it is pertinent to highlig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf is not a condition as sought to be argued by the appellant. It is further submitted that the state or the authorities under the state do not have the power to make any order in respect of inter-state sales and therefore, the use or omission of this expression cannot empower the state make the notification applicable to territories beyond the state. It is submitted that hence, even if the said expression was not there, the notification issued by State of Gujarat can only be applicable for consumers of the State of Gujarat and it is only pursuant to section 8(1) of CST Act, that this exemption notification is applicable to inter-state sales and thus, by no stretch of imagination, can it be said that the aforesaid expression is a condition to the exemption. Making above submissions, it is vehemently submitted that the exemption available under the State clause will be applicable to inter-State sales and accordingly the exemption under respective entries of the State exemption notification would in case of kerosene and LPG would also be available to the ONGC for its inter-State sale. Making above submissions, it is requested to dismiss the present Tax Appeals and it is requested t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on behalf of the ONGC that as, as per Notification No.4/2005 dated 01.03.2005 there is a excise exemption and the ONGC is exempted from the payment of excise duty and therefore, the ONGC is not liable to pay the sales tax / value added tax on sale of the kerosene by ONGC to OMCs is concerned, it is submitted by Shri Trivedi, learned Advocate General that merely because the ONGC is exempt from the payment of excise duty with reference to LPG for supply to domestic consumers, the same cannot ipso facto exempt ONGC from the payment of State Sales Tax. [8.3] Now, so far as the reliance placed upon by the learned Senior Advocate appearing on behalf of the ONGC on the communication dated 06.04.1999 by Government of India to OMCs is concerned, it is submitted by Shri Trivedi, learned Advocate General that the said communication merely suggests that ONGC will pay excise duty not on the price at which it sells its petroleum products to OMCs, but at the price at which the OMCs would sell to the buyers. It is submitted that as such an arrangement created by the Government of India for the purpose of collection of its own tax, i.e. Excise Duty, cannot and should not bind the State Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of Kerosene and LPG, having been received in bulk from ONGC, on one hand and from other sources on the other. It is submitted that even otherwise what is required to be considered is the interpretation of the respective entries and the wordings used therein. [8.6] Now, so far as the reliance placed upon the decision of the Hon'ble Supreme Court in the case of Reliance Natural Resources Ltd. (Supra) by the learned Counsel appearing on behalf of the ONGC, with respect to applicability of public trust doctrine is concerned and relying upon the said decision the contention on behalf of the ONGC that both Kerosene and LPG are precious natural resources and the constitutional provision mandates to secure the benefit flowing therefrom to various sections of the society inasmuch as Article 39(b) obligates the State to direct its policies towards securing 'that the ownership and control of material resources of the community are so distributed as best to subserve common good' and that resources being a gift of nature, they should be made freely available to everyone irrespective of status in life is concerned, Shri Trivedi, learned Advocate General has vehemently submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rine'. It is submitted that the provisions of State Sales Tax legislations aim at augmenting the State's exchequer by levying and collecting Sales Tax for the purpose of utilizing the same for the benefit of the public at large. It is submitted that thus, the purpose of collecting sales tax under the State legislations and the purpose of fixing the maximum price beyond which essential commodities cannot be sold under the Essential Commodities Act, 1955, is different and none of the said two can be downplayed by bringing in picture, the aforesaid doctrine. It is submitted that in fact, the said doctrine has nothing to do with the power of taxation of the State, where, there is no scope for the equitable consideration to play any role. [8.7] Now, so far as the various decisions relied upon by the learned Counsel appearing on behalf of the ONGC referred to hereinabove, Shri Trivedi, learned Advocate General has vehemently submitted that none of the decisions relied upon on behalf of the ONGC would be applicable to the facts of the case on hand and/or the same shall be of any assistance in support of the case that while selling the Kerosene and LPG for domestic use to OMCs, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as in favour of an assessee with reference to goods sold by it to any undertaking supplying electricity energy to public i.e. entity like Punjab State Electricity Board and on the contrary ONGC claims exemption on the strength of 'ultimate use of Kerosene / LPG', which is not at all a relevant factor for interpreting Entries 33 and 70 of the Notification issued under the erstwhile Act, 1969 and Entries 53 and 69 of Notification issued under the provisions of Gujarat Value Added Tax Act, 2003. [8.9] Now, so far as the reliance placed upon the decision of the Hon'ble Supreme Court in the case of BPL Display Devices Ltd. (Supra) by Shri Venkatraman, learned Senior Advocate appearing on behalf of the ONGC is concerned, it is submitted by Shri Trivedi, learned Advocate General that an exemption was provided in respect of various parts imported 'for use' in the manufacture of picture tubes. However, importer manufacturer was denied exemption on the ground that a small percentage of imported parts were damaged in transit and could not be used to manufacture picture tubes. It is submitted that the Hon'ble Supreme Court while allowing the said exemption by relying u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that merely because the Government of India takes a decision on notional basis that equal quantum of Kerosene and LPG in bulk sold by ONGC to OMCs may be ultimately utilized for Public Distribution System and domestic purpose, ONGC cannot claim the benefit of exemption from Sales Tax with reference to its sale of Kerosene and LPG, both in bulk, to OMCs on the basis of the aforesaid judgment. It is also humbly submitted that the view taken by the Madhya Pradesh High Court does not appear to be correct from the point of view of the taxing event, which is the event of sale under the applicable Sales Tax Legislations. [8.11] Now, so far as the reliance placed upon the decision of the Hon'ble Supreme Court in the case of Wood Papers (P) Ltd. (Supra) by Shri Venkatraman, learned Senior Advocate appearing on behalf of the ONGC is concerned, Shri Trivedi, learned Advocate General has submitted that the aforesaid judgment will also not come to the rescue of ONGC in any manner inasmuch as it simply suggests that the Exemption Notification is to be interpreted strictly to determine whether the subject is covered thereby and thereafter, full play should be given to it. It is su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Apex Court cannot be made applicable to fact of the present case. [8.14] Now, so far as the reliance placed by Shri Venkatraman, learned Senior Advocate appearing on behalf of the ONGC on the decision of Karnataka High Court in the case of Bharat Petroleum Corporation Ltd. (Supra), Shri Trivedi, learned Advocate General has submitted that in the said case State of Karnataka had provided exemption from sales tax in regard to sale of High Speed Diesel Oil to Fishermen. However, the State levied Cess to be recovered from the Fishermen, despite there being exemption from sales tax in respect of high speed diesel oil. It is submitted that the High Court took a view that Cess payable on such sales would also stand exempted in view of there being exemption from the payment of sales tax since collection of cess is entirely dependent on the collection of sales tax. It is further submitted that the said judgment cannot be made applicable to the present case. It is further submitted that on the contrary, it should be appreciated that the way in which the Karnataka Government had issued the exemption notification providing exemption from sales tax in respect of High Speed Diesel oil sold to f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endi, more particularly when the facts obtaining in the said case are altogether different from the facts of the present case. It is submitted that in the aforesaid case, the respondent ONGC was charged with an allegation of illegal importation of rough diamonds in the country and it was in that context that, Revenue contended that the benefit of Exemption Notification available to the importation of rough diamonds cannot be extended to a person who/which had illegally imported the same in the country, which amounts to smuggling of rough diamonds clandestinely without payment of duty. It is further submitted that admittedly, exemption benefit of Notification No. 247/76-Cus dated 20.8.1976 was very much available to the legally imported rough diamonds and in backdrop of the said facts, the Hon'ble Supreme Court considered the question as to whether the goods that were smuggled into the country can be read within the meaning of the expression 'imported goods' for the purpose of benefit of the Exemption Notification and as to whether the decision of the Tribunal allowing the benefit of Exemption Notification referred to above in favour of the Respondent Company was legal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in case of Bashir Oil Mills, is also totally misconceived and erroneous. It is submitted that in the said case, the Bombay High Court was dealing with the erstwhile provisions of sub-section (2A) of section 8 of the Central Sales Tax Act, which had provided that if goods (oil cake) in the said case are generally exempt (i.e. unconditionally or without any condition), its Inter-State sales of oil cakes would also be exempt from tax. It is submitted that in the instant case, firstly LPG was not generally exempt, since what was exempt was the sale of LPG 'for domestic use' and that too 'by consumers of the State' and secondly, sub-section (2A) of section 8 is now no more on a statute book. It is further submitted that apart from what is mentioned herein above, one is also required to keep in mind the provision of sub-section (1A) of section 6 of the Central Sales Act, 1966, which is set out hereunder for ready reference and as per the said provision, inter-State sale of a particular commodity is liable to sales tax, eventhough, intraState sale of the very commodity is exempt from tax liability under the applicable State Sales Tax law. Making above submissions it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is the duty of the Government Oil Companies to make kerosene supplied under Public Distribution System distinguishable and the same is being followed. Making above submissions, it is vehemently submitted that while selling the kerosene to the OMCs, the ONGC is a part of Public Distribution System and therefore, entitled to the exemption from payment of sales tax as well as VAT Act. [9.3] Now, so far as the reliance placed upon the decision of Hansraj Gordhandas (Supra) on behalf of the State is concerned, it is submitted by Shri Venkatraman, learned Senior Advocate appearing on behalf of the ONGC that the said judgment recommends plain construction when the language is clear and unambiguous. It is submitted that in the present case the definition of Public Distribution System is very clear and unambiguous and it nowhere exclude sale of kerosene by ONGC to OMCs from the purview of Public Distribution System. It is submitted that therefore as such ratio of the said judgment supports the ONGC's case. [9.4] Now, so far as the reliance placed upon the decision of the Hon'ble Supreme Court in the case of Motiram Tolaram (Supra) on behalf of the State is concerned, it is sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o violence is done to the language employed. It is submitted that in the aforesaid decision it is further observed that absurd results of constructions should be avoided. [9.8] Now, so far as the reliance placed upon the decision of the Hon'ble Supreme Court in the case of Saraswati Sugar Mills (Supra) on behalf of the State is concerned, it is submitted by Shri Venkatraman, learned Senior Advocate appearing on behalf of the ONGC that it is not the case on behalf of the ONGC to add or delete expressions, while interpreting the exemption notifications / respective exemption entries. It is submitted that it is the case on behalf of the ONGC that even plain construction would extend the benefit. [9.9] Now, so far as the submission on behalf of the State that the ONGC is a Navratna Company and has enormous resources and any loss arising out of payment of taxes by denying exemption is a bearable loss and since the ONGC would not be burdening the ultimate consumer, an interpretation which would advance denial is permissible is concerned, it is vehemently submitted by Shri Venkatraman, learned Senior Advocate appearing on behalf of the ONGC that the said submission is ex facie not m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom Gas Authority of India Limited (GAIL) cannot be included as part of the sale price of the gas sold by the respondent to GAIL. Under the circumstances the substantial question of law No.1 is held in favour of the Revenue and against the respondent - assessee - ONGC. [10.2] At the outset it is required to be noted that in this group of Appeals another / other dispute is with respect to the exemption notifications issued under Section 49(2) of the Act, 1969 as well as the exemption notifications issued under section 5(2) of the VAT Act. The dispute is with respect to the sale of kerosene and LPG by the ONGC to various OMCs. The relevant entries with respect to the exemption claimed under the Act, 1969 in respect of sale of kerosene and sale of LPG are 33, 70 and 173. The relevant entry Nos.33, 70 and 173 of the Schedule to the exemption notification issued under section 49(2) of the Act, 1969 are as under: Sr. No. Class of Sales or Purchases Exemption Whether of whole or Part of tax _________________ Ref. to Schedule Entry for goods given exemption Conditions 33. Sales of Kerosene for domestic use sold for Public distribution system. Whole of Sales Tax _________________ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are as under: Entry Period, Notification Date Class of Sales or Purchases ___________________ Ref. to Schedule Entry Exemption whether whole or part of tax Restriction and conditions if any 53 292006 onwards (GHN96) 292006 Kerosene sold through the public distribution system. EII46A Whole of tax Nil 55 1912007 to 1042011 (GHN1) 1912007 Goods declared as of special importance in section 14 of the Central Sales Tax Act, 1956. To the extent to which amount of tax exceeds four paise in the rupee. Nil 69 1162008 to 2102008 (GHN32) 1062008 Sales of Liquified Petroleum Gas (LPG) for domestic use. EII87 Whole of tax Nil 69 3102008 onwards (GHN45) 3102008 Sales of Liquified Petroleum Gas (LPG) for domestic use by the consumers of the state. EII87 Whole of tax Nil From the aforesaid it appears that as per the exemption notification issued under section 49(2) of the Act, 1969 and so long as the Act, 1969 was in force, on sale of kerosene for domestic use sold for Public Distribution System the whole of the sales tax was exempted and on sale of LPG (domestic) no tax exceeding the rate of 14% can be levied. From the relevant entries of the Schedule to the exemptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations issued under the Act, 1969 and VAT Act, 2003 are required to be interpreted. [10.4] The principles governing the interpretation of exemption notification and what are the parameters to be considered while interpreting any exemption notification in a taxing statute are by and large now not res integra. The Hon'ble Supreme Court as well as this Court in catena of decisions had an occasion to consider and deal with the principles of interpreting an exemption notification in a taxing statute. As per the catena of decisions of the Hon'ble Supreme Court when wordings in the notification are clear and unambiguous the same has to be strictly construed and one is not expected to stretch the word or to add or subtract words in order to grant or deny the benefit of exemption. As observed by the Hon'ble Supreme Court in the case of Modi Sugar Mills Ltd. (Supra), in interpreting a taxing statute, equitable considerations are entirely out of place. It is further observed and held that the Court must look squarely at the words of the statute and interpret them. It is further observed that it must interpret a taxing statute in light of what is clearly expressed; taken impart pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax under the Act, 1969 (till the said Act was in operation) in respect of the sale of kerosene by the ONGC to various OMCs [12.0] Now, the relevant entry in respect of sales of kerosene under the exemption notification issued under section 49(2) of the Act, 1969 as Entry No.33. It provides that in respect of sales of kerosene for domestic use sold for public distribution system there shall be exemption from payment of whole of the sales tax. Therefore, if it is established and proved that the sale of kerosene for domestic use was for public distribution system, there shall be exemption from payment of whole of the sales tax. [12.1] The phrase "for use" came to be considered by the Hon'ble Supreme Court in the case of Dalmia Dadri Cement Ltd. (Supra). While interpreting section 5(2)(a)(iv) of the Punjab General Sales Tax Act, the Hon'ble Supreme Court has observed and held that the expression "for use" must mean "intended for use". Relying upon the decision of the Hon'ble Supreme Court in the case of Dalmia Dadri Cement Ltd. (Supra), the Madhya Pradesh High Court recently in the case of Prakash Metal Crafts Industries (Supra) has also take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bution system. Therefore, there shall be a vast difference between "through" and word "for". Therefore, as such both the entries i.e. Entry No.53 under the VAT Act, 2003 and Entry No.33 under the Act, 1969 are different and distinct and having different phraseology. [12.4] It is the case on behalf of the ONGC that as the ONGC can be said to be part of the public distribution system, on sale of kerosene by the ONGC to various OMCs, being a part of the public distribution system, the ONGC shall be entitled to exemption from payment of Value Added Tax under the VAT Act, 2003 as per Entry No.53 of the Schedule to the exemption notification dated 31.03.2006. It is the case on behalf of the ONGC that the kerosene which is sold by ONGC to various OMCs would ultimately be sold to the public at large under the public distribution system and therefore, the ONGC shall be entitled to the exemption from payment of VAT Act, 2003. In support of their submissions, the learned Counsel appearing on behalf of the ONGC has heavily relied upon various documents referred to hereinabove in support of the case on behalf of the ONGC that ONGC is part of the public distribution system. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... public distribution system" is very clear and there is no possibility of any confusion whatsoever and it is absolutely unambiguous, the said entry is required to be considered as it is and it is required to be interpreted literally. On literal interpretation of the said entry in respect of the kerosene sold "through public distribution system", there shall be exemption from payment of whole of the tax under the VAT Act, 2003 and not otherwise. Under the circumstances, the sale of kerosene by the ONGC to various OMCs can be said to be kerosene sold "through public distribution system" which is the condition for the grant of exemption as per Entry No.53, the ONGC shall not be entitled to any exemption from payment of VAT Act, 2003 as per Entry No.53 in respect to the sale of kerosene by ONGC to various OMCs. [12.5] The learned Tribunal has as such misinterpreted the Entry No.53 and has committed a grave error in holding that in respect of the sale of the kerosene by ONGC to various OMCs, the ONGC shall be entitled to the exemption from payment of VAT Act, 2003 as per Entry No.53. We are of the opinion that while interpreting the Entry No.53 under the VAT Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estic use is held against the revenue and in favour of the assessee and it is held that to the extent to which the amount of sale tax exceeds 14 ps. in rupee, the ONGC shall be entitled to the exemption from payment of sales tax as per Entry No.70 read with Entry No.173. Exemption claimed by ONGC in respect of the sales of LPG, by ONGC to various OMCs from payment of value added tax under the VAT Act, 2003 as per Entry No.69 of the exemption notification issued under section 5(2) of the VAT Act, 2003 [12.7] Now so far as the exemption claimed by ONGC in respect of sale of LPG in bulk to various OMCs, claimed from payment of Value Added Tax, claimed under relevant entry No.69 is concerned, at the outset it is required to be noted that Entry No.69 is required to be bifurcated into two parts with respect to different parties. As per Entry No.69, pre 02.10.2008, more particularly for the period between 11.06.2008 to 02.10.2008 in respect of sale of LPG for domestic use, there shall be exemption from payment of whole of the VAT Act, 2003. However, for the post 03.10.2008 and 03.10.2008 onwards the said Entry No.69 has been amended and it provides that in respect of sales of LPG for do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment of tax under the VAT Act, 2003 from 03.10.2008 onwards as per amended Entry No.69 in respect of the sale of LPG in bulk by ONGC to various OMCs, as claimed by them. Under the circumstances, the ONGC is liable to pay the value added tax under the VAT Act, 2003 from 03.10.2008 onwards in respect of the sales of the LPG in bulk by ONGC to various OMCs. Under the circumstances, the substantial question of law framed with respect to interpretation of Entry No.69 in respect of the sale of LPG and the exemption claimed by ONGC in respect of the sale by it of LPG in bulk to various OMCs as claimed as per Entry No.69 is held pre 02.10.2008 to be in favour of the assessee and against the Revenue and for post 03.10.2008 onwards in favour of the Revenue and against the ONGC. [12.8] In view of the aforesaid discussion and for the reasons stated above, even the ONGC is not entitled to exemption from tax on the inter-State sales of LPG, effected by the ONGC from the Stat of Gujarat to other States as the exemption is available on inter-State sales of LPG for domestic use by the consumers of the State only. Under the circumstances, the ONGC is liable to pay value added tax on the inter-Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 45 of the Act, 1969 or not. Sub-section (5) of section 45 provides that in the case of a dealer the amount of tax assessed for any period under sections 41 to 50 or reassessed for any period under section 45 exceeds the amount of tax already paid by the dealer in respect of such period by more than 25% of the amount of tax so paid, dealer shall be deemed to have paid the tax to the extent of difference between amount so assessed or reassessed as aforesaid and the amount paid. Once considering sub-section (5) of section 45 of the Act, 1969, a dealer is deemed to have failed to pay the tax to the extent mentioned in sub-section (5), that shall be levied on such a dealer not exceeding a penalty ½ times the difference referred to in sub-section (5). Under the circumstances, to the aforesaid extent and on the difference of tax, as per sub-section (5) of section 45, the respondent ONGC - dealer is liable to pay the penalty as mentioned under sub-section (6) of section 45. Under the circumstances, the learned Tribunal is not justified in holding that the respondent is not liable to pay any penalty under sub-section (6) of section 45 of the Act, 1969. Under the circumstances and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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