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TMI Blog2018 (2) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... t estimates, have therefore, to be regarded as assessments made under Section 12(1) to which the penal provisions of Section 12(3) are not attracted. The levy of penalty for those two assessment years is set aside - revision dismissed - decided against Revenue. - T. C. (R). No. 73 of 2017 - - - Dated:- 22-12-2017 - S. Manikumar And R. Pongiappan, JJ. For Petitioner : Mr. K. Venkatesh ORDER ( Order of this Court was made by S. Manikumar, J. ) Instant Tax Case Revision Petition is filed against the order made in S.T.A.No.15 of 2011 dated 02.05.2013 on the file of the Tamil Nadu Sales Tax Appellate Tribunal, (Additional Bench), Chennai. 2. Short facts leading to the revision are that the respondent is a dealer in tools ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the abovesaid order of the Appellate Deputy Commissioner (CT), State has preferred the 2nd appeal, before the Tamil Nadu Sales Tax Appellate Tribunal (Additional Bench), Chennai, and the Tribunal vide order, in STA 15/2011, dated 02.05.2013, partly allowed, the appeal with respect to sales made to 100% EOU, and dismissed the appeal, with respect to equal addition, and partly dismissed the appeal with respect to penalty. Aggrieved against the order of the Tribunal, in respect of levy of penalty, State has filed this Tax Case (R). 5. Tax case revision is filed on the following substantial questions of law:- i) Whether the fact and circumstances of the case, the Tribunal is right in law in deleting the penalty levied under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be reused, and it loses its identity, as such it is consumed in the process of cutting as the inserts become brittle after use. The contention of the appellant is that, to be called as consumables, the goods should be completely utilized in the manufacturing activity. The Appellate Deputy Commissioner concurs with the stand of the respondent. The samples were examined. The samples were used Carbide Tip inserts, it is found that after the use, the Carbide Tip looses the sharpness in the cutting edge, thereby losing its utility, but not the identity. ii) The Honble Supreme Court of India in the case of Coastal Chemicals Limited Vs. Commercial Tax Officer reported in 117 STC 12 has held that the word consumables refers only to materi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an unidentifiable form, therefore to be called as consumables. Even after its usage, it remains with its identity. Therefore, based on the facts of sample observation and judicial pronouncements, the Carbide Tip inserts are not consumed when used for cutting, as a result, they are not consumables, thereby not eligible for exemption as consumables as per the notification. As a result, this Tribunal feels that the Appellate Deputy Commissioner has not appreciated the facts in proper perspective accordingly, it needs interference by this Tribunal. Therefore, the orders of Appellate Deputy Commissioner is hereby set aside and deleted with regard to tax levied on sales made to 100% EOU. v) Regarding the equal time addition for the stock di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 100% EOU, partly dismissed with respect to equal addition partly dismissed with respect to penalty. 10. In Appollo Saline Pharmacheuticals Private Limited Vs. Commercial Tax Officer (Fac) and others, reported in CDJ 2001 MHC 550, a Hon'ble Division Bench of this Court held as follows:- 6. The law so declared that the best judgment assessment is based on an estimate and is not one based solely on the account books was reiterated by the Supreme Court in the case of Commissioner of Sales Tax, Madhya Pradesh v. H.M. Esufali H.M. Abdulali. 7. Though other sub-sections of Section 12 were amended by the State Legislature subsequent to the date of the judgment in the case of Jayaraj Nadar Sons , Sections 12(1) and 12(2) h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly in W.P. No. 120 of 2000 on September 14, 2001 [Appollo Saline Pharmaceuticals (P.) Limited v. Deputy Commercial Tax Officer] Seepage 500 supra. The earlier judgments of this Court had taken the view that the bottles being a distinct commodity and not having been consumed in the manufacture of I.V. fluids, there was a separate sale of the bottles and therefore, Section 7-A providing for levy of purchase tax was not attracted. 10. In respect of assessments which were properly made by way of best judgment assessment, and in which penalty has been levied, it was submitted that the authority has failed to consider the bona fides of the petitioner. It was submitted that the turnover had been disclosed in full, but a part of it had not bee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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