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TMI Blog2016 (4) TMI 785X X X X Extracts X X X X X X X X Extracts X X X X ..... needs to be re-decided by the Assessing Authority keeping in view the fact that the petitioner is Custom Department of the Government of India and there could be ambiguity in understanding the provisions of the Bihar Finance Act, 1981. Therefore, the tax is levied and matter remitted for determining question of penalty and interest. - Petition disposed of - Civil Writ Jurisdiction Case No. 7606, 7671, 7703 , 7712, 7779, 7782, 7854, 7859, 7884, 7941, 7992, 7999, 8018, 8041, 8970 of 2007 - - - Dated:- 11-3-2016 - Hemant Gupta And Ramesh Kumar Datta, JJ. For the Appellant : Mrs. Archana Meenakshee, Adv. Mr. Kumar Pankaj, Adv For the Respondent : Mr. Vikash Kumar, AC to PAAG JUDGMENT ( Per: Honourable Mr. Justice Hemant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rries out the business of sale of confiscated goods through auction and that as dealer the petitioner is required to furnish return and deposit tax as per Section 16 of the Bihar Finance Act, 1981. The petitioner is also required to produce books of accounts relating to its transactions and get assessed under section 17 of the Act. The petitioner neither filed return nor produced books of accounts as required under section 16(1) and 17(2) of the Bihar Finance Act, 1981 in spite of notice. Thereafter an ex parte order was passed. Thus, it was asserted that action against the petitioner is in accordance with law and there is no infirmity in raising demand of levied tax, interest and penalty. 5. Learned counsel for the petitioner has veheme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jab, (1997) 7 SCC 399. 9. The majority opinion in the Supreme Court in Sea Customs case (supra) held that the bar of Article 289 of the Constitution of India does not apply to indirect tax like customs duty, Central excise duty, sales tax etc. 10. In a later judgment, in the case of New Delhi Municipal Council (supra), the Hon'ble Supreme Court held that Article 289 (1) provides for exemption of property and income of the States only from taxes imposed directly upon them; it has no application to indirect taxes like duties of excise and customs; duties of excise and customs are not taxes on property or income; they are taxes on manufacture/production of goods and on import/export of goods, hence, outside the purview of clause (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in that event they will really become the same tax. 5. The decision in the Sea Customs Act case was considered by another nine-Judge Bench in the case of New Delhi Municipal Council v. State of Punjab, (1997) 7 SCC 339 and was affirmed. 12. In view of the said facts, the Special Leave to Petition of the Collector of Customs was dismissed. 13. Such judgments have recently been followed by three-Judge Bench of the Hon'ble Supreme Court in the case of Karya Palak Engineer, CPWD v. Rajasthan Taxation Board, (2004) 7 SCC 195. The Court held to the following effect: 12. Having heard the learned counsel for the parties and having perused the judgment of the High Court and the relevant clause in the agreement between the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods and on import/export of goods, as the case may be, and hence, outside the purview of clause (1) of Article 289. 14. In view of the aforesaid judgments, we find that the petitioner is a dealer within the meaning of Section 2(e) of the Bihar Finance Act, 1981 read with IInd Explanation and, thus, it is exigible to the sales tax. 15. Having returned such finding, the question to be examined is whether the petitioner is liable to penalty or interest on account of non-filing of return etc. We find that the said question needs to be re-decided by the Assessing Authority keeping in view the fact that the petitioner is Custom Department of the Government of India and there could be ambiguity in understanding the provisions of the Biha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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