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TMI Blog2023 (10) TMI 723X X X X Extracts X X X X X X X X Extracts X X X X ..... tanding Counsel for Commercial Tax, for the respondents. 3. For the sake of convenience, the facts in Tax Revision Case No. 8 of 2008 are discussed hereunder. 4. Tax Revision Case No. 8 of 2008 is filed by the petitioner against the order of assessment and the remaining four Tax Revision Cases are filed assailing the order of the appellant-Deputy Commissioner, confirming the penalty imposed by the assessing authority. 5. The point of contention in the instant case is : (a) whether the petitioners are entitled to avail purchase of cement at a concessional rate, i.e., at the rate of 4% instead of 16% under the provisions of Section 5-B of the Andhra Pradesh General Sales Tax Act, 1957 (for short, 'the Act'); and (b) whether the order of penalty passed by the assessing authority and confirmed by the Appellate Deputy Commissioner under Section 7-A of the Act was justified particularly when Section 5-B itself provides for a penal provision. The assessment orders involved in the present five Revisions are of the years 2001-02, 2002-03, 2003-04 and 2004-05. 6. The brief facts relevant for the adjudication of the disputes in the present batch of Revisions are that the petitioner-as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Commissioner which too stood dismissed by the Appellate authority vide order dated 18.05.2007 and which was further confirmed in appeal by the Sales Tax Appellate Tribunal in T.A. No. 724 of 2007 leading to the filing of present Tax Revision Case No. 8 of 2008. Meanwhile, since the petitioner had been found purchasing cement at concessional rate of tax in spite of the above referred G.O. dated 17.07.2001, wherein "cement" was included in the list of goods which would not be entitled for being purchased at a concessional rate, the assessing authority imposed penalty against the petitioner to the tune of three (03) of times the difference of tax payable by the petitioner. The order of penalty was also challenged before the Appellate Dy. Commissioner who too confirmed the penalty order which led to filing of appeal by the petitioner before the Sales Tax Appellate Tribunal, Andhra Pradesh, at Hyderabad in Tribunal Appeal No. 866 of 2005 and batch. However, the Tribunal also confirmed the penalty order and also the order of the Appellate Dy. Commissioner leading to filing of present Tax Revision Cases. 9. Learned counsel for the petitioner contended that the order passed by the Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) was misused, the penalty proceedings could had been only under Section 5-B(2) which in the instant case has not been done and the notice issued for penalty itself was under Section 7-A(2) which in the instant case is not attracted at all. Therefore, the entire penal proceedings itself is per se bad, illegal and liable to be set aside. 12. Learned counsel for the petitioner further contended that since the petitioner rightly or wrongly had a valid G2 registration certificate issued from a competent authorized authority and the item "cement" getting deleted from the said registration certificate only w.e.f. 28.02.2005, under no stretch of imagination, according to petitioner, can he be penalized and the order of penalty on this ground also is liable to be set aside. 13. Per contra, learned Senior Standing Counsel for the respondent-State opposing the petition, contended that when once the Government had issued the G.O. on 17.07.2001 and which was well within the knowledge of the petitioner, there was no reason why the petitioner should have purchased cement against the G Forms and the authorities, therefore, were justified in issuing the impugned assessment order and penalty pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is still in force from 17.07.2001 onwards. Based on the G2 registration certificate the petitioner continued purchasing cement against G Forms at a concessional rate which was detected in an inspection that was conducted somewhere in the year 2005. Immediately, a show-cause notice was issued to the petitioner on 03.02.2005. Even after issuance of the said show-cause notice, the petitioner continued to purchase cement against the G Forms at a concessional rate. 17. From the aforesaid factual matrix of the case, prior to issuance of the G.O. dated 17.07.2001, cement was one of the item which was eligible to be purchased at a concessional rate. It was in this context that the authorities at the earliest time had issued the G2 registration certificate permitting the petitioner to purchase cement at a concessional rate. However, after issuance of the G.O. dated 17.07.2001, the petitioner was not entitled for purchase of cement at a concessional rate. In spite of this, petitioner continued to purchase cement at a concessional rate against the G Forms. True, it is went unnoticed at the hands of the respondent so far as permitting the petitioner to purchase cement at a concessional rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner is entitled for purchase of cement at a concessional rate under Section 5B in the teeth of G.O. dated 17.07.2001 stands answered in the negative against the petitioner. Accordingly, Tax Revision Case No. 8 of 2008 is dismissed. Tax Revision Case Nos. 9, 10, 11 and 12 of 2008 :: 21. As regards penalty orders in these Revisions are concerned, the admitted factual matrix in the instant case is again that the notices issued for the penalty proceedings was under Section 7-A(2). The said proviso is attracted only when a dealer produces a false bill, voucher, declaration, certificate or any other document for a purchase to be effected at a reduced rate. This, in fact, is not the case of the respondent at all. The stand of the respondent all along was that the petitioner was liable to pay penalty under Section 5-B(2). For ready reference, both these two penal provisions would be required to be appreciated and they are reproduced as under, viz., "Section 5-B(2) : If any dealer, -- (i) not having his manufacturing unit within the State purchases any goods by furnishing a declaration under the proviso to subsection (1); or (ii) having his manufacturing unit within the State and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by the respondent in the aforesaid writ petition, viz., Writ Petition No. 14484 of 2005, which stands admitted that the proceedings drawn for penalty was under Section 7-A(2) and not under Section 5(B)(2). Though the State has taken a plea that there is some misquoting or wrong quoting of the provision, nonetheless, the petitioner never had an occasion of defending himself in a penalty proceedings under Section 5-B(2). What is also required to be appreciated is that Section 7-A(2) and Section 5-B(2) are both independent penal provisions. Separate proceedings have to be drawn for each of the provisions. In the instant case, there does not seem to be any corrigendum or rectification order issued by the respondent for treating the notice under Section 7-A(2) as notice under Section 5-B(2) either before imposing of the penalty or subsequently, except for the admission on their part in the reply in Writ Petition No. 14484 of 2005. 24. For the aforesaid reasons, since the petitioner never had an occasion to defend himself under Section 5-B(2), the entire proceedings initiated against the petitioner so far as imposing penalty is concerned under Section 7-A(2) stands vitiated as th ..... 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