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TMI Blog2019 (4) TMI 1634X X X X Extracts X X X X X X X X Extracts X X X X ..... to support the said stipulation made in the show cause notice given by the revisional authority with the help of any document or certain report that the further verification of the inspection report by the enforcing authority by producing him in cross-examination of the Assessee during the course of revisional proceedings - nothing as a fact was proved against the Assessee that all the moulds were not available with the Assessee for verification. Thus, the revisional authority has not correctly invoked his revisional jurisdiction in this matter, under Section 34 of the Act, which empowers him to call for and examine an order passed by the Appellate Assistant Commissioner - The discretionary power given under Section 34 of the Act to the revisional authority is wide and therefore, the said discretionary power has to be exercised with a great amount of circumspection, but the reason for invoking such revisional power should be based on the relevant materials and such materials should inspire confidence when the reasons are examined by the appellate forum or Constitutional Courts. Petition allowed. - Tax Case(Appeal) No.938 of 2006 And T.C.M.P.No.350 of 2003 - - - Dated:- 29- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The said receipt for designing such 'Moulds and Dies' were not taxable turnover in the hands of the Assessee, as such 'Moulds and Dies' were designed by the Assessee on the specification of the said customers and there was no reason to further tax the said receipts as taxable turnover. But, the Assistant Commissioner passed the order, referring to the decision of the Hon'ble Supreme Court in the case of Tamil Nadu vs. Anantha Visvanathan [73 STC 1] . The relevant portion of the order passed by the Appellate Assistant Commissioner in this regard, is quoted below for ready reference: It was therefore, clear that the facts of that case decided by the Tribunal would not be applicable to the appellant's case. The appellant in the instant case, was not at all a manufacture and dealer of die or mould and the mould was designed for the manufacture of bottles to the particular customers. The annual report of the company and the balance sheet clearly indicated the asset value of the impugned mould and there was no material to hold that the appellant had sold the mould to the customers and received the sale value for the said goods to the extent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that a part or even the whole of the materials used by him may have been his property. Where the finished product supplied to a particular customer is not a commercial commodity in the sense that it cannot be sold in the market to any other person. The transaction is only a works contract. The said principles laid down by the Supreme Court would squarely apply to the appellant's case also. In the instant case, the authorities below pointed out that the customers have not supplied any mould to the Assessee (appellant) for using them in the machine for manufacturing the design models of bottles and as soon as the contract for manufacture of bottles was over. The Assessee (appellant) have to return the mould to the customers who placed order. There was no evidence for return of the mould to the customers and as stressed by the appellant. They were kept as the asset of the company and the value of the said asset was also found place in the financial statements of the company. Considering the above facts and circumstances there was no reason for concluding that the appellant had accounted for the said design charges received from the customers in the trading account other than the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rials of 'Lipton' received for production of finished products during the months of April 92 and May 92 and the said fact itself would prove the contention that the production of 'Lipton' goods to 39,762 nos. was wrongly furnished during the survey. The connected records were perused by me and the contention was found admissible as there was no receipt of raw materials for production of the said quantity of bottles during the said months. It is also to be noted that the appellant had sold the bottles to Tvl.Lipton India Limited from their own account only during the said months as evidenced from the sales invoices in No.20/24.4.92, 28/29.04.92, 29/30.04.92, 35/7.5.92 and 48/14.5.92 for a quantity of 40,160 Nos. of bottles. Considering the above facts and circumstances of the case, there was no material to hold that the appellant had suppressed the production of bottles of 36,615 numbers and hence, the suppression estimated to the extent of ₹ 4,78,595.00 is deleted. 5. However, despite the objections raised by the Assessee in this regard namely, two major items, the Joint Commissioner held that the penalty levied by Assessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer. The Appellate Assistant Commissioner (CT) has also stated that there was discrepancy in stock but modified the assessment. His finding is not acceptable as the stock difference was admitted in statement on physical verification. In view of the reasons given in the Suo Motu Revision Notice, the order of the Appellate Assistant Commissioner (CT) is not acceptable on this point and both the turnover is assessable. The Assessing Officer levied tax on ₹ 1,94,865/- since the dealers used the carton boxes of TEAM for packing the own products. The Appellate Assistant Commissioner (CT) on verification of the records observed that the dealers produced relevant accounts and tallied the stock of bottles and carton boxed of the customers during the month of March 1993 and thus there was no suppression and accordingly he deleted the relevant turnover of the assessment. This factual finding is found correct and acceptable. Next dispute relates to the assessment made on the turnover of ₹ 8,00,000/-. And equal addition made thereon. It is seen from the records that the dealers have received a sum from 4 customers to the tune ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the taxable turnover. The receipts for the job work of converting the raw materials from plastic into pet bottles in a specified size or design for other customers is not a taxable turnover in the hands of the Assessee. The Appellate Assistant Commissioner, after examining the materials on record, in our opinion, had rightly arrived at a finding in favour of the Assessee that both the aforesaid specified items were not taxable turnover in the hands of the Assessee and the sale turnover of ₹ 4,78,595/- represented the job work receipts from the company M/s. LIPTON and the other sum of ₹ 8,00,000/- was nothing but the designing charges received from four companies for designing the moulds according to their specification and such moulds were treated as the assets in the hands of the Assessee and it could be neither sold to any other outside party nor even to the specified customers. 8. Even though the learned counsel for the Revenue submitted before us that at the time of inspection, these moulds were not produced for verification, he was unable to support the said stipulation made in the show cause notice given by the revisional authority with the help of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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