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TMI Blog2016 (10) TMI 813X X X X Extracts X X X X X X X X Extracts X X X X ..... greement which was entered into between the TNEB and the petitioner. The specific case of the petitioner is that if the agreement is treated to be as one of the agreement for sale, it would violate the notification issued by the Central Government of India as clearance of fly ash is a part of environmental protection exercise. However, this aspect has not been gone into in a proper prospective by the respondent. Disallowance of exemption on clearance effected to SEZ - the respondent appears to have put the matter in cold storage for nearly ten months after the personal hearing and all of a sudden, has passed the impugned order that certain certificates produced by the petitioner are defective. However, it is seen that before doing so, no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons in the main Writ Petition itself and therefore, this court proposes to dispose of the main Writ Petition. 3. The petitioner is a Public Limited Company incorporated under the Companies Act, 1956, having its factory at Arakkonam, engaged in the manufacture of PPC and OPC cement. The Sale of cement is taxable at the rate of 12.5 % at present 14.5% under Entry 14 of part C to the First Schedule of the Tamil Nadu Value Added Tax Act, 2006 (hereinafter referred to as the Act ). For the purpose of production of cement, there are several inputs and one of the inputs is fly ash, which has been procured by the petitioner from the power generating station of the Tamil Nadu Electricity Board. An Agreement was entered into by the Petitioner with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 stating that there was no purchase at all from NCTPS and the disposal of the fly ash was part of compliance with pollution control norms undertaken by NCTPS and the petitioner had paid only service fee and no price was charged for the procurement of fly ash from NCTPS. After about 2= months, the petitioner received a notice dated 04.03.2014, which was a notice of demand, demanding purchase tax from the petitioner. The petitioner challenged the same before this Court, by filing W.P.No.8061 of 2014 on the ground that without issuing show cause notice, such a demand could not have been raised, which was set aside by this Court, by order dated 21.03.2014. 6. It is thereafter, the respondent issued a Pre-Assessment Notice dated 30.06.2014. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SEZ units. 9. The respondent has completed the assessment and passed the impugned orders . The finding on the first issue with regard to the fly ash is to the effect that the petitioners themselves has accepted that they have paid certain amount to the power stations for lifting the fly ash and incurred lorry freight, etc in the transportation of the same to their factory and taking note of the said fact, the value of the fly ash arrived at based on the purchase price paid to other suppliers and assess to tax under Section 12(1)(a) of the Act. The proposal was confirmed by rejecting the petitioners claim with regard to the disallowance of exemption on clearance to SEZ. The respondent pointed out certain defects in the certificates produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es after about ten months after the personal hearing was concluded. Therefore, it is submitted that the matter may be remanded back to the Assessing Officer for reconsidering these two issues. 12. The learned Additional Government Pleader has referred to the counter affidavit and submitted that the agreement entered into between the petitioner and the NCTPS reveals that service charges are collected by the Thermal Power Station, which is nothing but royalty and to support such contention, the decision of the Hon'ble Supreme Court in the case of Behar Contractors' Association was relied on. Therefore, the respondent would state that the value of the fly ash collected from Thermal Power Station is arrived at based upon the price pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he notification issued by the Central Government of India as clearance of fly ash is a part of environmental protection exercise. However, this aspect has not been gone into in a proper prospective by the respondent. 15. With regard to the other issue pertaining to the disallowance of exemption on clearance effected to SEZ, the respondent appears to have put the matter in cold storage for nearly ten months after the personal hearing and all of a sudden, has passed the impugned order that certain certificates produced by the petitioner are defective. However, it is seen that before doing so, no opportunity was granted to the petitioner. This Court had an occasion to consider the aspect, as regards the zero rated sale and exempted sale wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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