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2009 DIGILAW 606 (KAR)

AMBERKAR PRE STRESSED PRODUCTS v. ADDITIONAL COMMISSIONER OF COMMERCIAL TAXES.

2009-08-06

ARAVIND KUMAR, D.V.SHYLENDRA KUMAR

body2009
JUDGMENT D. V. SHYLENDRA KUMAR, J. - The appellant is a dealer registered under the provisions of the Karnataka Tax on Entry of Goods Act, 1979 (for short, "the Act"). For the period between April 1, 2002 to March 31, 2003 the assessee it appears had effected purchases of cement for the purpose of using it in the manufacture of cement poles and in the course of the activity had caused the entry of the goods into local area of Davanagere municipal area. The assessing officer under the provisions of this Act assessed the tax liability of the dealer in terms of entry 10 of the table providing for rate of entry tax leviable under the provisions of section 3(1) of the Act, the cement figuring at entry 10 was to be subjected to tax at five per cent and on such premise tax liability had been determined. The appellant - dealer had contended that the appellant was entitled to the benefit of Explanation II to this notification stipulating the rates of tax and which Explanation reads as under : "Explanation II : If any of the goods specified in serial numbers 1 to 10 in the Table are brought into a local area for use or consumption as raw material in the manufacture of tobacco product and liquor, the tax leviable and collectable on such goods shall be at the rate specified in such serial numbers." would provide that the dealer was entitled to claim the benefit of exemption from levy of tax under the Act so long as the purchased goods which had entered the local area was consumed in the manufacture of cement poles and as such was entitled for exemption from levy of entry tax in terms of Explanation II to the Table. This contention found favour with the appellate authority in terms of the order dated April 28, 2005 (copy at annexure B). However, the success was short lived as the revisional authority in exercise of his powers under section 15 of the Act revised this order and restored the assessment order fastening the liability on the appellant - dealer in respect of the value of cement brought into local area at fiver per cent as in the Table, being of the view that Explanation II does not extend any benefit as claimed by the dealer. It is aggrieved by this order, the present appeal. It is aggrieved by this order, the present appeal. Appearing on behalf of the appellant, Sri Atul K. Alur, learned counsel, would vehemently urge that Explanation II very clearly gave the benefit in respect of items not covered under Explanation I and cement being not an entry in Explanation I, the appellant - dealer was entitled to claim benefit of Explanation II, etc. It is also the alternative submission of Sri Atul K. Alur, the learned counsel for the appellant - dealer, that the Finance Minister in his budget speech had held out an assurance for extending the benefit of exemption from levy of entry tax in respect of purchases of cement from the scope of levy of entry tax and it was followed up by a notification issued on July 31, 2004 whereafter entry at Sl. No. 10 in respect of cement itself was deleted and cement became an item not liable for payment of entry tax. It is submitted that this assurance having been made earlier and having been followed up by a notification, the notification should be taken to be operative from the date of the budget speech of the Finance Minister and therefore on the day when the entry was caused by the dealer the assurance had been held out, the benefit should be extended, no tax should be levied on the entry of goods. While the facts it appears to be not correct as the relevant period which was the subject-matter of assessment by the assessing officer was from April 1, 2002 to March 31, 2003. Even in law, if by subsequent notification an entry in the Table indicating the rate at which the particular item should be taxed is omitted the effect is that there is tax liability till that date and it does not become operative from an earlier date just because the Finance Minister had made a Budget Speech proposing certain benefits. Whatever speech might have been made by the Finance Minister, ultimately, what matters is what part of the speech is translated into statutory provision and in what manner. On a perusal of the statutory provisions, we find no benefit as claimed by the appellant can be extended. The assessment order was right and the Additional Commissioner has rightly restored it, set aside the order passed by the appellate authority. On a perusal of the statutory provisions, we find no benefit as claimed by the appellant can be extended. The assessment order was right and the Additional Commissioner has rightly restored it, set aside the order passed by the appellate authority. While it is true that Explanation II makes a deviation in so far as the rate of tax leviable on entry of goods covered by that Explanation is caused by a dealer and consequentially the tax liability under the Act, it makes a difference only in the case of such raw material consumed in the manufacture of tobacco products and liquor and not in respect of PCC cement poles. Explanation II does not in any way alter the liability of the dealer in terms of the rate as stipulated in the main Table. There is no merit in T.A.E.T. No. 1 of 2006 which is hereby dismissed. Re. : T.A.E.T. Nos. 2 and 3 of 2006 : These appeals relate to the liability for payment of entry tax for the period in question and the arguments advanced by Sri Atul K. Alur, learned counsel for the appellants is already examined in T.A.E.T. No. 1 of 2006. In terms of the discussion made in the course of the judgment in T.A.E.T. No. 1 of 2006 hereinabove, the T.A.E.T. Nos. 2 and 3 of 2006 are also dismissed.