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2017 DIGILAW 678 (GUJ)

State of Gujarat v. Yuvraj International Ltd.

2017-03-24

B.N.KARIA, M.R.SHAH

body2017
JUDGMENT : M.R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Gujarat Value Added Tax Tribunal, Ahmedabad (hereinafter referred to as "the learned tribunal") in Second Appeal No. 510/2009 by which the learned tribunal has allowed the said Appeal preferred by the respondent - dealer, revenue has preferred the present Tax Appeal with the following proposed question of law; "(A) Whether on the facts and in the circumstances of the case, the learned tribunal has rightly held that the goods on which process carried out is amounts to manufacture? (B) Whether on the facts and in the circumstances of the case the learned tribunal has rightly held that Section 5(3) of the Central Sales Tax, 1956 applies in the present case?" 2. The facts leading to the present Tax Appeal in nutshell are as under; 2.1 The Assessing Officer did not allow the claim of the sales in course of export against Form "H" amounting to Rs. 2,51,80,089/- and levied tax at the rate of 10% on the said sales and raised the demand of tax, interest and penalty. The Assessing Officer denied the sales against Form "H" on the ground that the after the exporter purchased the goods in question from the respondent - dealer the same was not sold by the exporter in the form in which it has been purchased from the respondent and after undertaking same process on it, goods came to be sold, which amounted to manufacture and resultantly the tax demand at the rate of 10% on the said sales. The appellate authority held that the respondent is liable to pay Rs. 58,80,709/-. In Second Appeal before the learned tribunal, by the impugned judgment and order the learned tribunal has allowed the said Appeal preferred by the respondent and has quashed and set aside the order passed by the assessing authority as well as the first appellate authority relying upon its earlier judgment and order in the case of H K Industries v. State of Gujarat passed in Second Appeal Nos. 203 & 204/2004. 203 & 204/2004. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned tribunal, revenue has preferred the present Tax Appeal with the following proposed questions of law; "(A) Whether on the facts and in the circumstances of the case, the learned tribunal has rightly held that the goods on which process carried out is amounts to manufacture? (B) Whether on the facts and in the circumstances of the case the learned tribunal has rightly held that Section 5(3) of the Central Sales Tax, 1956 applies in the present case?" 3. Heard Shri Hardik Vora, learned AGP appearing on behalf of the revenue. 4. At the outset, it is required to be noted that against the judgment and order passed by the learned tribunal in the case of H K Industries v. State of Gujarat passed in Second Appeal Nos. 203 & 204/2004, revenue preferred Appeal before this Court, however, the same has been dismissed. It is true that the same has been dismissed on the ground of limitation. However, the controversy in the present Tax Appeal is squarely covered against the revenue in view of the decision of the Division Bench of this Court in the case of State of Gujarat v. Ambica Agro Product rendered in Tax Appeal No. 923/2013 and other allied Tax Appeals by which in the similar set of facts and circumstances the Division Bench has held that the respondent is entitled to the claim under Form "H" and has held that the process carried out by the exporter cannot be said to be manufacture. The controversy in question is covered by the decision of the Division Bench of this Court in the case of Ambica Agro Product (Supra) is not disputed by Shri Hardik Vora, learned AGP appearing on behalf of the State. He is also not in a position to point any contrary decision to the Division Bench of this Court in the case of Ambica Agro Product (Supra). He is also not in a position to point any contrary decision to the Division Bench of this Court in the case of Ambica Agro Product (Supra). Considering the aforesaid facts and circumstances of the case and more particularly the decision of the Division Bench of this Court in the case of Ambica Agro Product (Supra) and in the facts and circumstances of the case the process carried out by the exporter cannot be said to be manufacture, and therefore, the claim of the respondent of sale against Form "H" is allowable, the learned tribunal has not committed any error in allowing the Appeal and quashing and set aside the orders passed by the Assessing Officer as well as the learned first appellate authority. 5. In view of the above, no substantial question of law arises in the present Tax Appeal, and therefore, the same deserves to be dismissed. CIVIL APPLICATION No. 165/2017 In view of dismissal of the main Tax Appeal, Civil Application No. 165/2017, which has been preferred by the revenue for substituted service, deserves to be dismissed and is accordingly dismissed.