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1993 DIGILAW 623 (RAJ)

A. C. T. O. v. MAHESH BANDHU.

1993-09-22

V.K.SINGHAL

body1993
JUDGMENT V. K. SINGHAL, J. - This revision petition has been filed against the order of the Rajasthan Sales Tax Tribunal dated February 4, 1988 raising the following two questions of law, arising out of its order : (i) Whether, in the facts and circumstances of the case, the goods purchased on furnishing declaration forms S.T. 17 and S.T. 17A could be resold to other purchasers after obtaining declaration forms S.T. 17 and S.T. 17A from them and thus avoiding tax ? (ii) Whether, in the facts and circumstances of the case, full rate would include the concessional rate provided under sections 5C and 5CC ? Brief facts of the case are that the assessee is a dealer and purchased tin sheets, etc., from M/s. Rajasthan Tin Works, Kekari, against form S.T. 17 for resale. M/s. Rajasthan Tin Works, Kekari, are manufacturers and are entitled to effect sale to a registered dealer in accordance with the notification dated March 23, 1963 read with notification dated February 13, 1976. In the course of assessment proceedings, the assessing authority found that the assessee has effected sale of such manufactured items purchased under declaration forms S.T. 17 and S.T. 17A in accordance with notification dated February 13, 1976 to other manufacturers under the provisions of sections 5C and 5CC at the concessional rate. While finalising the assessment under section 10 of the Act, the said declaration form was accepted and the assessment was finalised. Thereafter, proceedings were initiated under section 12 and the assessing authority was of the view that in accordance with notification dated February 13, 1976 the assessee has not paid full rate of tax and, therefore, the sales effected to other manufacturers under sections 5C and 5CC of the Rajasthan Sales Tax Act are not in accordance with law. Tax at the rate of 7 per cent and interest thereon was levied. In the appeal before the Deputy Commissioner (Appeals), the Deputy Commissioner has taken into consideration the notification issued on February 13, 1976 and the provisions of rule 15 by which point of tax was shifted from the hands of manufacturer to another registered dealer and came to the conclusion that the words "full rate" mean the rate prescribed by the Legislature for various type of manufacturers and, therefore, the assessee is entitled to effect sale under sections 5C and 5CC of the Act. The matter was taken up by the assessing authority to the Rajasthan Sales Tax Tribunal and the appeal was dismissed. I have considered over the matter. The provisions of sections 5C and 5CC are having overriding effect, inasmuch as they have prescribed special rate of tax for the manufacturers. The said sections are applicable when the conditions mentioned therein are fulfilled. One of the conditions besides furnishing of declaration form is, with regard to the use of goods and in those circumstances the concessional rate has been prescribed under sections 5C and 5CC to those manufacturers who have established new industries after 1970 and 1974. In accordance with the provisions of rule 15, tax is payable at first point unless there is a notification otherwise issued. In the present case there is no such notification prescribing tax at second or subsequent or last point has been issued and the notification dated February 13, 1976, has shifted the point of tax from the hand of manufacturer to a second dealer. Therefore, on the logical conclusion of the notification dated February 13, 1976 and the provisions of rule 15, the sale could be effected by the purchaser, i.e., the assessee to any manufacturer at the concessional rate of tax which has to be considered as "full rate" as contemplated in the notification dated February 13, 1976. The rate may be prescribed by the Legislature itself or power could be delegated to the State Government for prescribing the rate of tax. In either case, prescription of the rate by the Legislature or by delegated authority would be the full rate which could be applicable and, therefore, the sale which has been effected in the present case to a manufacturer will be considered to be in accordance with law. The provisions of sections 5C and 5CC are having overriding effect on all other provisions and, therefore, whenever any purchase is made by a manufacturer or sale is effected by a dealer to a manufacturer, the rates as prescribed under sections 5C and 5CC alone are applicable. There is no contravention of the provisions of notification dated February 13, 1976 and, therefore, no interference is required in the impugned order passed by the Sales Tax Tribunal. The revision petition having no force is hereby dismissed. Petition dismissed.