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TMI Blog2023 (9) TMI 512X X X X Extracts X X X X X X X X Extracts X X X X ..... Other substantial questions of law are squarely covered and answered in the decision of Goldie Glass Industries [ 2017 (8) TMI 1451 - MADHYA PRADESH HIGH COURT ] where it was held that Section 3A was inserted in the Statute to provide for appointment of Appellate Authority by the State Government not below the rank of Deputy Commissioner of Commercial Tax. It is further clear from Sections 46 and 47 that from the order of Dy. Commissioner of Commercial Tax (Appeal), no further appeal or revision lies. In other words, the order passed by the Dy. Commissioner of Commercial Tax (Appeal) is final and is not amenable to suo-motu revisional powers conferred by Section 47 of the Act. All the five substantial questions of law are answered in favour of the petitioner/assessee - petition disposed off. - Hon'ble Shri Justice Sheel Nagu And Hon ble Shri Justice Amarnath (Kesharwani) For the Petitioner : Shri Samagra Shrivastava, Advocate For the Respondents : Shri Darshan Soni, Govt. Advocate ORDER This Value Added Tax Appeal preferred u/S 53 of Madhya Pradesh VAT Act, 2002 assails the order of M.P. Commercial Tax Appeal Board, Bhopal dated 23.12.2016, whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he facts and circumstances of the present case and the impugned order does not stand to the scrutiny of law and liable to be set aside. 4. After hearing learned counsel for the rival parties on admission, this Court deems it appropriate to admit this appeal and finally hear and dispose it of on the following five substantial questions of law: (i) In view of the aforesaid facts a substantial question of law arises as to whether the freight charged separately from the buyer would fall part of the sale price and tax levied on the freight component is legally correct or not. (ii) The activity of transportation is an activity of service and the same is taxable under the Finance Act, 1994 passed by the parliament which seeks to tax services including the service of transportation. On the other hand sale of goods is taxable under VAT Act legislated by the state legislature. The service tax and the VAT are mutually exclusive, applicable in respect of services and goods having regard to the respective parameters of service tax and sales tax and therefore the activity of transportation cannot be taxed under the CST Act. (iii) The freight charges collected separately as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Bench decision of this Court rendered in Commissioner of Commercial Tax vs. Shah Goverdhan Das Bhikari Das, 2007 Vol. 10 VST 349 (MP) , copy of which is annexed alongwith the Return of the State. 8 . We have heard learned counsel for parties and after having gone through the factual scenario attending the instant case and the findings rendered in the impugned order herein and also the verdicts of this Court in Goldie Glass Industries (supra) and of Orissa High Court in the M/s Utkal Moulders (supra), it is evident that the aforesaid substantial questions of law No.1, 2 3 were answered by Orissa High Court in the case of M/s Utkal Moulders (supra) which is evident from the relevant paragraphs of the said judgment which are reproduced below: 22. In the considered view of the Court, the discussion by the Tribunal, and the conclusion reached by it, overlooks the actual applicable clauses of the contract. In fact the Tribunal does not actually discuss Clause 6.1 read with Clause 4(a) of the PO which would indicate what the intention of the parties was when they entered into the contract of sale and purchase as to the exact place of delivery of the goods in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uniform rate of freight charges irrespective of distanced of transportation. Therefore, the revision petitioner with a view to see that his products should be available for sale at all places at a uniform price, has charged the freight charges at uniform rate. 25. In the considered view of the Court, since the Tribunal made a factual error as regards the place of delivery in terms of the Clauses of the Contract in the present case, it made a further error in distinguishing the above decision as not applicable to the facts. On the other hand, this Court finds that the said decision is squarely applicable to the fact in the present case. 26. The Tribunal also appears to have erred in not correctly applying the ratio of the decision in Hindustan Sugar Mills v. State of Rajasthan (supra). There again it was explained in detail by the Supreme Court what the purport of the definition of sale under Section 2(p) of the Rajasthan Sales Tax Act, 1954, which corresponds Section 2(h) of the CST Act. The Supreme Court explained that the definition was in two parts as under: The first part says that sale price means the amount payable to a dealer as consideration fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provide for appointment of Appellate Authority by the State Government not below the rank of Deputy Commissioner of Commercial Tax. It is further clear from Sections 46 and 47 that from the order of Dy. Commissioner of Commercial Tax (Appeal), no further appeal or revision lies. In other words, the order passed by the Dy. Commissioner of Commercial Tax (Appeal) is final and is not amenable to suo-motu revisional powers conferred by Section 47 of the Act. 6. In view of the foregoing discussion, in the back drop of statutory provision, we have no hesitation to answer the question in favour of the petitioner and against the revenue. Even otherwise, it is well established that every taxing statute must be read according to the natural construction of its words. It is now well established that if a person sought to be taxed must be taxed. On the other hand, if the revenue is to recover tax, cannot bring the subject within the letter of law, the subject is free, however apparently within the spirit of law the case might otherwise appear to be. 7. The up shot of whole discussion is that the impugned show cause notice dated 09.01.2014 (Annexure-P/7) and the order impugned dated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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