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TMI Blog2021 (3) TMI 525X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the prescribed authority and the First Appellate Authority, it is clear that both the authorities have recorded a finding that transit / handling loss is inevitable while transportation of iron ore fines and lumps. It is well settled legal proposition that an order passed by an authority under one enactment cannot be basis for levying tax under another enactment specially when event and point of levy are different under those enactments. The point of levy of excise duty is removal of goods whereas, point of levy under the Act is on sale. Therefore, an order passed by the Excise Authority cannot lead to the conclusion that there was a sale leviable to tax under the Act. It is pertinent to note that transit / handling loss was claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority? (ii) Whether the Tribunal was right in holding that the transit/handling losses of iron ore claimed by the Respondent, amounting to 5% of its total export clearances, it within reasonable limits, despite there being no evidence submitted by the respondent to show the actual transit/handling losses? (iii) Whether the Tribunal was right in setting aside the orders of the first appellate authority and the assessing authority, insofar as they restricted the claim of transit/handling losses or iron ore to 0.92% and 1% of the Respondent's total export clearances, respectively, based on the average transit/handling losses of iron ore claimed by leading mining companies such NMDC Ltd., and MSPL Ltd.? 2. Facts leading to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r referred to as 'the CBI' for short) report and the order passed by Central Excise and Customs (hereinafter referred to as 'the Excise Authority' for short) treating the aforesaid shortage of iron ore as amounting to clandestine removal of goods. 4. The respondent filed a reply in which it was pointed out that the charges framed by the CBI were quashed and it had filed the appeal against the order passed by the Excise Authority. The respondent also contended that despite effort he cannot treat the transit / handling loss as suppress turnover merely on the basis of CBI report of order passed by the Excise Authority without any material with regard to the suppressed turnover being sold by the respondent. It was further poi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for transit / handling loss at 0.92% instead of 1%, which was allowed by the prescribed authority and deleted the addition of turnover in respect of four entire years. Thus, the appeal was partly allowed by the First Appellate Authority. The State Government has not assailed the validity of the order passed by the First Appellate Authority to the extent it has granted the relief to the respondent. The respondent preferred an appeal before the tribunal. The tribunal by an order dated 24.04.2007 held that the claim of the respondent for transit / handling loss in respect of export sales which are otherwise exempt from income has not been challenged by the appellants herein. The tribunal allowed the appeal filed by the respondent. In the afo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turnover and has suppressed the same. It is further pointed out that prescribed authority as well as the first Appellate Authority admitted that transit / handling loss was inevitable in the nature of business carried on by the respondent and in the absence of any material that respondent had effected sales and had suppressed the same no addition of suppressed turnover could have been made. It is further submitted that mere shortage of closing stock on account of various factors does not lead to the conclusion that respondent had effected sales which are liable to tax under the Act and the levy under the Act is on sales therefore, the burden is on the revenue to prove that respondent had effected sales and had suppressed the same. It is als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies have recorded a finding that transit / handling loss is inevitable while transportation of iron ore fines and lumps. It is well settled legal proposition that an order passed by an authority under one enactment cannot be basis for levying tax under another enactment specially when event and point of levy are different under those enactments. [See: M /S GIRDHARI LAL NANNELAL VS. THE SALE TAX COMMISSIONER M.P., (1976) 3 SCC 701, 'G.M.PATEL VS. THE STATE OF KARNATAKA', 1984 SCC ONLINE KAR 417]. 9. The point of levy of excise duty is removal of goods whereas, point of levy under the Act is on sale. Therefore, an order passed by the Excise Authority cannot lead to the conclusion that there was a sale leviable to tax under the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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