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TMI Blog2019 (6) TMI 314X X X X Extracts X X X X X X X X Extracts X X X X ..... l as the contents are sold independently, the packing material is liable to tax on its own footing. Whether in the facts and in the circumstances of the case, the order levying tax under section 4B on gunny bags being an essential packing material for sugar passed by respondent No.4 as upheld by the VAT Tribunal which were purchased from outside the State of Punjab and have already suffered tax is correct in law in view of the various pronouncements in this behalf? - HELD THAT:- In the absence of any categorical record based finding regarding the terms of agreement relating to price of the gunny bags viz-a-viz the price charged for sugar sold, for which the Tribunal is the final fact finding authority, it is considered appropriate to remand this issue to the Tribunal to decide afresh after considering the case law on the point and also in the background of the factual matrix involved in the case - the issue is remitted to the Tribunal to decide the same afresh in accordance with law. Whether in the facts and in the circumstances of the case, VAT Tribunal, Punjab, Chandigarh has erred in law in upholding the order of the Assessing Officer dated 17.10.2003 passed in reassessment proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the case, the orders Annexure A.1, Annexure A.2 and Annexure A.3 are legally sustainable in law? ii) Whether in the facts and in the circumstances of the case, the VAT Tribunal, Punjab, Chandigarh has grossly erred in upholding the order of the Assessing Officer now known as Notified Authority cum Excise and Taxation Officer as upheld by the Deputy Excise and Taxation Commissioner (Appeals) Patiala more so by following the judgment of this Hon ble Court which is still a matter under challenge before the Hon ble Supreme Court of India and wherein leave has been granted? iii) Whether in the facts and in the circumstances of the case, the VAT Tribunal, Punjab, Chandigarh has grossly erred in upholding the order of the Assessing Officer now known as Notified Authority cum Excise and Taxation Officer as upheld by the Deputy Excise and Taxation Commissioner (Appeals) Patiala has grossly erred in upholding the order as within limitation which is stated to have been passed on 14.3.2003 and could be passed upto 30.4.2003 i.e. within three years although the same has been served on the appellant on 17.5.2003. The Chairman VAT Tribunal has not passed speaking order on this issue as is evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he manufacture of these goods. The sugarcane being the main raw material is being purchased from the members who are farmers and owner/tiller of land. The goods produced i.e. sugar, molasses are mainly sold under the government control orders. The rate of raw material purchased i.e. sugarcane is also fixed by the Government of India from time to time. The Government of India enacted an Act named Additional Duties of Excise (Goods of Special Importance) Act, 1957, whereby additional duties of excise were imposed on certain goods including sugar. The appellant filed its quarterly returns as per provisions of Section 10 of the 1948 Act within the stipulated time. The case was taken up for scrutiny assessment under Section 11 of the 1948 Act by issue of notice to the assessee. The Assessing officer while completing the assessment determined the purchase price of sugarcane for the purpose of levy of purchase tax at ₹ 19,43,71,455/-. The appellant had declared the purchase price which had not been accepted by the Assessing Authority being the statutory minimum price fixed by the Government of India for the year under consideration. The Assessing Officer levied purchase tax @ 2% of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in M/s A.B.Sugars Limited s case (supra). Answered accordingly. Question No.(iii) was not pressed by the learned counsel for the appellant. Question No.(v) does not arise for consideration. 6. With regard to question No.(iv) qua levy of tax on the packing material of sugar under Section 4B of the 1948 Act, the assessee claimed that the gunny bags purchased by the appellant sugar mill and used as packing material for sugar, there was no tax applicable as the assessee sells sugar and not gunny bags. It was urged that no separate price was charged for the packing material which is essential for selling and stocking sugar. Support was gathered from the decision of the Apex Court in Raj Sheel and others Vs. State of A.P. and others , (1989) 3 SCC 262 and of this Court in Punjab Breweries Limited Vs. State of Punjab and others , (1998) 120 PLR 423. 7. In Raj Sheel s case (supra), the Apex Court held that where sale is a composite transaction of sale of goods only, component sale of packing material cannot be treated separately for determining turn over. In a case where the packing material is an independent commodity and the packing material as well as the contents are sold independently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese cases is whether the bottles sold along with beer can be subjected to higher 31/39 rate of tax, i.e., at the rate of 10 per cent as against 4 per cent tax levied on the beer. Shri Jhingan argued that the view taken by the Assessing Authority, the Appellate Authority and the Tribunal on the issue of levy of tax at the rate of 10 per cent is against the settled principles of law. He submitted that in view of their finding that the bottles in which beer was sold formed an integral part of transaction of the sale of goods, the respondents could not have charged tax on the price of bottles at the rate of 10 per cent. 'Shri Jhingan relied on State of Orissa v. Habib Rahimutulla Co. [1982] 51 STC 403 (Ori) Raj Sheel v. State of Andhra Pradesh Malva Vanaspati Chemicals Co. Ltd. v. Commercial Taxes Officer, Special Circle, Jaipur State of Tamil Nadu v. V. V. Vanniaperumal Co. [1990] 76 STC 203 (Mad.) and Premier Breweries v. State of Kerala : (1998)1SCC641 . Mrs. Charu Tuli countered the submissions of Shri Jhingan and argued that if the petitioner wanted to avail the concessional rate of tax on bottles, then it should have submitted separate 'C' forms before the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax at the rate of 8.8% for the period from 25.01.2000 to 31.03.2000 during the year 1999-2000 and there is no ambiguity regarding the same. Prior to 25.01.2000 i.e. till 24.01.2000 the rate of tax was 2.2%. However, on 25.01.2000 the sugarcane was not mentioned in any of the schedule, meaning thereby that it was to be charged at the general rate of 8.8%. However, w.e.f. 23.01.2001 the rate of tax on sugarcane was again specified @ 1%. It is thus abundantly clear that from 25.01.2000 till 22.01.2001 sugarcane was taxed at the rate of 8.8.%. The dealer himself admits that the has moved the Government for making necessary notification for the intervening period. In the absence of any specific notification for the period mentioned above, I see no reason to differ with the reassessment order. 11. The Tribunal recorded findings on this question to the effect that in response to the submission of the appellant that tax at the rate of 8.8.% could not be levied on sugarcane for the period w.e.f. 25.01.2000 to 31.03.2000 in the light of notification dated 28.08.1998 was not acceptable. No such notification had been brought on the record to gain the benefit. Further the said plea was not rai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rate of purchase tax on sugarcane for the said period will be 8.8.%. In view of the above, learned counsel for the State urged that in the absence of any challenge to the Ordinance No.3 of 2000 and Amendment Act, 2000, the appellant-assessee cannot rely upon the proceedings dated September 9, 2005 on the issues of Cooperative Sugar Mills in the State of Punjab and especially agenda Item No.6, (Annexure A.8) relating to the charging of purchase tax for the period from 25.01.2000 to 31.03.2000, as the requisite decision was required to be taken by the Government after clearance from the Council of Ministers. However, no decision had been taken by the Government with regard to charging of purchase tax at the rate of 2.2% for the period from 25.01.2000 to 21.03.2001. 13. We find force in the submission of learned counsel for the State. In the absence of the learned counsel for the appellant to show that any final decision had been taken by the Government with regard to charging of purchase tax at the rate of 2.2% for the period from 25.01.2000 to 21.03.2001, the assessee cannot derive any benefit from the proceedings dated 9th September, 2005 on the issues of Co-operative Sugar Mil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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