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TMI Blog2018 (3) TMI 1366X X X X Extracts X X X X X X X X Extracts X X X X ..... .S.K.Soundara Rajan For the Respondent : Mr.A.Muthukaruppan Additional Government Pleader JUDGMENT [ Judgment of the Court was delivered by M. Sathyanarayanan, J. ] The appellant is the writ petitioner. The writ petitioner made a challenge to the impugned order of the respondent dated 25.08.2008 and so far as determining taxable turnover liable to tax under Section 3(5) of the Tamil Nadu General Sales Tax Act, 1959 [in short, TNGST Act ] at the rate of 1 % of ₹ 82,56,954/-. The said writ petition came to be dismissed on 07.08.2009 as not maintainable, on the ground that an effective alternate appellate remedy is available and challenging the legality of the said order, the present writ appeal is filed. 2.This Court vide order dated 09.10.2009, while admitting the writ appeal has observed that This Writ appeal is admitted only on the question of liability of turnover to an extent of ₹ 82,56,954/- assessable under the provisions of Additional Sales Tax Act, barring that other issued do not fall for consideration before this Court and also granted interim orders. 3.The facts briefly narrated leading to this writ appeal are as follows: 3.1.The peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng officer. However, without taking note of the objection, the order was confirmed and penalty was also proposed for which also the petitioner has filed his response, which culminated in the impugned order dated 25.08.2008. 4.The writ petition was entertained and the respondents have filed their counter affidavit and took a stand that the petitioner company, a manufacturer of HDPE/PP bags had purchased polythene granules on issue of Form XVII and availed the concession rate of tax at 3% at the said purchase and that the said commodity without Form XVII is taxable at 4% and the petitioner out of the purchase has resold the polythene granules for a sum of ₹ 82,56,954/- which is against the condition laid down under Section 3(3) of the TNGST Act. 5.The respondent further took a stand that a portion of the purchase have not been used for manufacturing purpose and they were resold and that the appellant / writ petitioner has contravened the provisions under Section 3(3) of the TNGST Act and therefore, the said turnover has been assessed to tax at the rate of 1% which is in accordance with the statute. Insofar as levy of penalty is concerned, the respondent took a stand that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Taxable turnover for the purpose of this clause does not include the turnover of resale, taxable under Section 3-H of the said Act and would further submit that they have also paid the additional sales tax at the rate of 1% of ₹ 82,56,954/- and as such, the levy of 1% of ₹ 82,56,954/- is wholly unsustainable and since it is against the express provisions of the statute, the appellant / writ petitioner need not avail alternate remedy and prays for interference. 10.The learned counsel appearing for the appellant / writ petitioner in support of his submission, has placed reliance upon the decision rendered in Vol. 105 STC 202 (Eagle Flask Industries Limited Vs. Commercial Tax Officer and another) and another judgment rendered by the Tamil Nadu Taxation Special Appellate Tribunal, which was upheld by the Division Bench of this Court in order dated 02.12.2010 in W.P.No.2765 of 2005 (M/s.Everest Buildings Products Limited Vs. The Tamil Nadu Sales Tax Appellate Tribunal, Coimbatore and others). 11.Per contra, Mr.A.Muthukaruppan, learned Additional Government Pleader appearing for the respondent / revenue would submit that since the appellant / writ petitioner had re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x would have been collected from the registered dealer at the point of first sale by them to the petitioner. Therefore, by no stretch of imagination the value of goods of ₹ 22,65,828 which went into the manufacture of end-products but were stock transferred in violation of declaration can be included as the taxable turnover of the petitioner attracting the provisions of the Tamil Nadu Additional Sales Tax Act, 1970. Since the petition is filed at the time of show cause notice, the petitioners are granted time till 30th January, 1997 to file their objections in respect of other issues . 15.A Division Bench of this Court in the order dated 02.12.2012 made in W.P.No.2765 of 2005 (cited supra), has considered the issue as to the payment of additional sales tax in respect of the tax levied under Section 3(4) of the Tamil Nadu Additional Sales Tax Act and taken into consideration the above cited decision rendered by the Tribunal and observed as follows in paragraph No.12: 12.The said decision was said to have become final and conclusive. Inasmuch as there is no challenge to the order of the Special Tribunal, the reasoning of the Tribunal passed on different set of expres ..... X X X X Extracts X X X X X X X X Extracts X X X X
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