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TMI Blog2022 (4) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... n mining/generation or distribution of electricity or any form of power . It is reasonable to expect that the Petitioner as a selling dealer would go by the above declaration instead of undertaking an investigation into whether such declaration has rightly made. The Department has no answer to the plea of the Petitioner that if it had declined to accept the Form IV furnished to it by the saw mill manufacturers, it may have been in violation of Section 9-B (3) of the OST Act. The Court enquired from Mr. Padhy whether any instructions were issued by the Department to the selling dealers in general asking them not to accept Form IV if it was either furnished by a saw mill manufacturer or anyone else whom the Department has ascertained not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For Petitioner : Mr. R.P. Kar, Advocate For Opposite Party : Mr. S.S. Padhy Additional Standing Counsel JUDGMENT Dr. S. Muralidhar, CJ. The present revision petition was admitted by an order dated 17th August, 2017 passed by this Court and the following substantial questions of law were framed for consideration: (i) Whether in the facts and circumstances of the case, the Tribunal was correct in rejecting the declarations in Form-IV, which were furnished by the purchasing dealers to the Petitioner, for purchase of logs, as manufacturers? (ii) Whether in the facts and circumstances of the case, the Petitioner has contravened either the 5th proviso to section 5(1) of the Act or entry 48 of the list C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r was made exigible to 8% tax. As a result, in the assessment order dated 19th December, 1991 the STO raised an extra demand against the Petitioner of ₹ 58,736/-. 5. As regards Issue (i), it is submitted by Mr. Kar, learned counsel appearing for the Petitioner, that the decision in Titaghur Paper Mills Company Ltd.(supra) is distinguishable on facts. The said case did not concern sale of timber to saw mill manufacturers and proceeded on the basis that the timber whether sold as logs of wood or as rafters and beams etc. continued to remain as timber and that conversion of such timber into rafters and beams would not amount to manufacture . The Supreme Court, therefore, held that the same timber which has already suffered purcha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... process the logs of wood purchased by them from the Petitioner, then there would be no justification in their furnishing the Form IV declaration to avail of the concessional rate of sales tax. According to him, knowing that the sale of timber was a first point sale, the Petitioner ought not to have accepted the Form IV from the saw mills manufacturers. He accordingly, supported the view taken by the Tribunal in the instant case. 9. The above submissions have been considered. As far as issue (i) is concerned, the Court notes that in the present case nothing has been brought on record to enable either the Tribunal or this Court to come to a conclusion that the saw mill manufacturers who purchased the logs of wood from the Petitioner did n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the law explained by the Supreme Court in Titaghur Paper Mills Company Ltd.(supra) the selling dealer ought to have proceeded on the basis that the saw mill manufacturers who had furnished the Form IV declaration, should be understood to have not undertaken any activities of manufacturing or processing of the purchased goods. The Petitioner as a selling dealer was in no position to come to such conclusion. 12. Further, the Department has no answer to the plea of the Petitioner that if it had declined to accept the Form IV furnished to it by the saw mill manufacturers, it may have been in violation of Section 9-B (3) of the OST Act. The Court enquired from Mr. Padhy whether any instructions were issued by the Department to the sellin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her the 5th proviso to Section 5 (1) of the OST Act nor Entry 48 (now Entry 81) of List C of the Rate Chart appended to the OST Act. It is clarified that question (ii) is confined to the period between 1st January, 1990 and 31st March, 1990 when timber was declared as a first point sale item. 15. The impugned order of the Tribunal and the corresponding orders of the STO/AO and the Appellate Authority are accordingly set aside. 16. Mr. Kar, learned counsel for the Petitioner that the entire tax demanded has already been paid by the Petitioner. If as a result of giving tax effect to the present judgment any refund is payable to the Petitioner it shall be done so within a period of eight weeks in accordance with the Rules. 17. The r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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