2015 (2) TMI 1015 - HC - VAT and Sales Tax

Tribunal upholds jurisdiction to review pending appeals, denies exemption for unlisted products.

M/s. Jitendra R. Gandhi Versus The Commissioner of Sales Tax Maharashtra

The Tribunal was legally justified in allowing the Administrative Assistant Commissioner to assume revisional jurisdiction under Section 57, despite ... Whether on the facts and circumstances of the case and on a true and correct interpretation of the provisions contained in Sections 57 and 55 of the Bombay Sales Tax Act, 1959, the Tribunal was legally justified in holding Bombay High Court that the Administrative Asstt. Commissioner was legally justified in assuming the revisional jurisdiction under section 57, despite the appeals against the very assessment orders being pending under section 55 before the Appellate Asstt. Commissioner who was his co-ordinate authority Held that:- As Assessing Officer had accepted the contention of the assesses for exemption of brass sheets from levy of sales tax without there being its specific reference in the eligibility certificate, the revisional authority appears to have called for and examined the matter and has come to a conclusion that brass sheets manufactured and sold by the assessee would not be eligible to exemption from levy of sales tax under the 1979 Package Scheme of incentives and notification entry No.136 under Section 41 of Bombay Sales Tax Act, 1959. The Assistant Commissioner in exercise of the powers pursuant to Section 57(1) had proceeded with the revisional proceeding and has passed order in the same. The revision is an independent power of an authority calling for and examining record and orders passed by an officer subordinate and to pass such order as he may think just and proper. Appeal by the assessee had been filed since him being not satisfied by certain other disallowances. As such, orders in respect of certain other disallowances in the appeal pending before the Assistant Commissioner of Sales Tax, Kolhapur would be hardly a matter which concerns the matter in revision. There is no decision by the appellate authority in said appeal which has been filed by the assessee aggrieved by other disallowances and much less there is any matter - such, exercise of revisional powers by the co ordinate authority would not be trammeled by pendency of appeal. Decision in Santoshi Tel Utpadak Kendra (1978 (7) TMI 233 - BOMBAY HIGH COURT) would hardly have any application in the present set of facts and circumstances. Tribunal is justified in holding that there is no error in exercise of powers u/s. 57 by the revisional authority. Whether on the facts and in the circumstances of the case and on a true and correct interpretation of the provisions contained in the 1979 Scheme of Incentives and the Notification Entry 136 under section 41 of the Bombay Sales Tax Act, 1959, the Tribunal was legally justified in holding that the appellant was not entitled to the exemption benefits in the context of manufacture of brass sheets for the reason of the brass sheets being not specifically mentioned in the class of manufactured goods as specified in the eligibility certificate - Held that:- List of products under the eligibility /entitlement certificate does not make reference to sheets or other products by strips, rods circles etc. of brass like the one the case of aluminum appearing in the list under the eligibility certificate. Moreover, in the absence of copper sheets being listed, the contention that brass sheets being its alloy qualify for exemption from levy of sales tax under the eligibility/entitlement certificate cannot be sustained. As such there does not appear to be any substance in the contention with regard to claim for exemption from levy of sales tax for brass sheets. As such, the second question also stands answered in the affirmative. - Decided against assessee. Issues Involved:1. Whether the Tribunal was legally justified in holding that the Administrative Assistant Commissioner was legally justified in assuming the revisional jurisdiction under section 57, despite the appeals against the very assessment orders being pending under section 55 before the Appellate Assistant Commissioner who was his co-ordinate authority.2. Whether the Tribunal was legally justified in holding that the appellant was not entitled to the exemption benefits in the context of the manufacture of brass sheets, given that brass sheets were not specifically mentioned in the class of manufactured goods specified in the eligibility certificate.Issue-wise Detailed Analysis:Issue 1: Revisional Jurisdiction under Section 57The primary question was whether the Administrative Assistant Commissioner could assume revisional jurisdiction under Section 57 of the Bombay Sales Tax Act, 1959, while appeals against the same assessment orders were pending under Section 55 before the Appellate Assistant Commissioner, a co-ordinate authority.The court analyzed Sections 55 and 57 of the Bombay Sales Tax Act, 1959, which detail the appellate and revisional powers, respectively. The appellant argued that the initiation and culmination of the revisional proceedings by a co-ordinate authority were misconceived since the matter was pending appeal before an authority of the same peer. The appellant relied on the Supreme Court's decision in Santoshi Tel Utpadak Kendra vs. The Deputy Commissioner, which emphasized that an appellate authority in a second appeal has the power to enhance the assessment, and this power should not overlap with the revisional jurisdiction of the Commissioner.However, the court distinguished the facts of the present case from those in Santoshi Tel Utpadak Kendra. Here, the appeal before the Appellate Authority was not decided, and there was no superior authority at the appellate stage. The court concluded that the pendency of an appeal did not bar the exercise of revisional powers by the Assistant Commissioner (Administration). The Tribunal was justified in holding that there was no error in the exercise of powers under Section 57 by the revisional authority. Thus, the first question was answered in the affirmative.Issue 2: Entitlement to Exemption Benefits for Brass SheetsThe second issue was whether the appellant was entitled to exemption benefits for the manufacture of brass sheets, given that brass sheets were not specifically mentioned in the eligibility certificate.The appellant argued that brass, being an alloy of copper, should be considered covered by the term 'copper' in the eligibility certificate. The appellant cited the Supreme Court's decision in Kalidas Sheet Metal Industries P. Ltd. vs. State of Kerala, which held that reference to 'copper' in the certificate would include brass sheets.However, the court noted that the eligibility certificate specifically listed products such as domestic stainless steel utensils, hospital equipment wares, aluminum utensils, and rolling for mill for copper, but did not mention brass sheets. The court referred to the decision in Commissioner of Central Excise, Jaipur vs. Mewar Bartan Nirmal Udyog, which emphasized that exemption notifications must be interpreted strictly according to their language.The court concluded that in the absence of a specific reference to brass sheets in the eligibility certificate, the appellant's claim for exemption could not be sustained. The Tribunal's decision to disallow the exemption for brass sheets was upheld. Thus, the second question was also answered in the affirmative.Conclusion:The reference was decided against the assessee and in favor of the revenue. The Tribunal was justified in its decisions on both issues. There was no order as to costs.