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TMI Blog2016 (6) TMI 904X X X X Extracts X X X X X X X X Extracts X X X X ..... e Commissioner of Commercial Taxes in paragraph (14) of Circular No.13/2006-07 dated 26-6-2006, which is binding on the DCCT, and accordingly, to have passed the impugned order? 2. Whether on the facts and in the circumstances of the case of the petitioner the Tribunal was right in having upheld the levy of penalty under section 72(2) and interest under section 36 of KVAT Act by the DCCT (Audit-33), for the 23 tax periods from December 2005 to March 2008 in re-assessment order passed under Section 39(1) of the KVAT Act? 3. Whether on the facts and in the circumstances of the case, Tribunal was right in not following the order passed by another Bench of the Tribunal on the same issue and relied upon on behalf of the petitioner?" 2. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for each and every transaction of purchase and procurement, use in the manufacture and sale and stock transfers of the manufactured goods, conforming to the requirements prescribed in Section 31 of the Act is contrary to facts. The Prescribed Authority also notes that the Deputy Commissioner of Commercial Taxes (Vigilance), who has inspected the books of accounts of the Appellant on 3 different dates has found that the dealer has not applied the restrictions of Section 11(a)(5) and Section 11(a)(6) while claiming the input tax credit with respect to purchases utilized for stock transfers outside the State and on purchases of petroleum products which include furnace oil in entirety. It is the finding of the Prescribed Authority that the App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d paid along with the returns of Rs. 99,05,74,089/- leaving a difference tax payable of Rs. 8,03,917/- under the CST Act and refundable amount of Rs. 19,88,44,369/- has arisen because the Appellant had paid a tax of Rs. 20.00 crores pursuant to the orders under Section 39(1) dated 30-6-2010, that the said re-assessment order was rectified vide orders dated 24-2-2011 after the Appellant filed Form-C declaration resulting in the said refund. Thus, the said refund has not occurred due to the promptness of the Appellant in payment of taxes in accordance with law and consequently the same does not establish any un-intentional or non-deliberate act of the Appellant. 15. The Circular (Supra) in Para (8) clearly states that un - intentional cases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of partial rebating, the benefit of Para (14) of the Circular is available and therefore, penalty and interest should not be levied on it. 16. As explained above, there was no confusion with respect to the application of the formula on the facts in these Appeals and these Appeals do not fall under the un- intentional cases referred to in the said Circular. Therefore, the benefit of Circular in its Para (14) is not available to the Appellant. Such being the case, the citations relied on by the Appellant in support of his contention are irrelevant to the facts of these Appeals. The First Appellate Authority has considered the contentions of the Appellant and has come to the categorical finding that the benefit of the Circular is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rroneously applied by the assessing authority. He therefore submitted that the Tribunal having not properly considered the aforesaid aspect s, has recorded a finding of fact on the action being "not unintentional". The same would become a subject matter of judicial scrutiny in the present facts. He also contended that the petitioner, during the course of hearing, did rely upon the decision of the co-ordinate Bench of the Tribunal dated 28.11.2013 in case of Sri Srinivas, Partner, M/s.Shivaganga Food Oil Extractions Vs. State of Karnataka in STA Nos.193 to 221/2012. But the Tribunal without dealing with the said aspects in detail has just brushed aside the s aid decision which is not permissible. He submitted that if there is a decision of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntend that the Tribunal has not properly considered the other clauses of the circular or that the Tribunal has not considered that the formula was applied by the petitioner but was found to be erroneous by the Assessing Officer, in our view, cannot be countenanced for two reasons: One is that the first appellate authority after having considered all aspects did find that the action was not unintentional. Further, the Tribunal in the impugned order has found that there was no confusion about applicability of the formula and it was clear. The reference made to no n- applicability of formula is to imply that the correct formula was not applied. The question of non- applicability of correct formula could be said as unintentional if there is amb ..... X X X X Extracts X X X X X X X X Extracts X X X X
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