TaxTMI 
TaxTMI 
1998 (11) TMI 637
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....in the memorandum of the revision the assessee has not raised any point in respect of these assessments and the learned Senior Counsel Mr. C. Natarajan, also did not argue anything about the levy of tax on those turnovers. His argument is only on the question of tax for the shortage in shipping the prawns. Therefore, we are not interfering with the orders of the Appellate Tribunal in respect of its finding for the assessment on the sale of chemicals and van. 2.. As there is a common question arising in all these revisions they were heard together and common order is passed. 3.. In order to make the facts more clear and for proper understanding of the case, the quantity of prawns purchased by the assessees and the quantity exported by them has to be referred to in detail. 4.. All these petitioners in these revisions are sea-food exporters. The petitioner in T.C.R. No. 329 of 1997 purchased 1,88,545 kgs. of prawns to the value of Rs. 1,29,93,675 during the assessment year 1983-84 and he exported only 1,60,390 kgs. and the closing account showed the stock of 14,936 kgs. Therefore, there was shortage of 13,219 kgs. of prawns which was neither exported nor found in the stock bo....
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..... The contention of the assessees in all these revisions is that the shortage mentioned above is due to the removal of the inedible portion of the sea-foods such as head, tail, shell, etc., and also due to the keeping of the processed prawns in deep freezer till the time of export and as the removal of inedible portion is unavoidable wastage in the course of export, there was shortage to the extent of the above quantity, which is to be treated as part of the exported quantity and therefore the assessment on the shortage is illegal. 6.. The learned Senior Counsel Mr. C. Natarajan, appearing for these assessees contended that the assessing officer has not found anywhere that the unshipped quantity has been locally sold or utilised for any other purposes and the contention of the assessees that the shortages are due to the wastage of the inedible portion, has not been rebutted by any counter argument, but all along the findings of the appellate authorities also is to the effect that there is no formula in the statute to give relief on such wastages and thereby the assessees are bound to pay the tax for the said shortage which was not exported. 7.. The learned Senior Couns....
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....d when the petitioner has explained the difference in the weighments attributing to the process of ginning or dryage due to climatic variations, the utility of the goods as contemplated could be accepted for granting exemption, without comparing the weight of the goods purchased and sold. The Bombay High Court in Commissioner of Sales Tax, Maharashtra State, Bombay v. East Asiatic Commercial Co. reported in [1985] 59 STC 10 also took the view that when the wastage is unavoidable, the same also is to be added for giving deduction. In the Bombay case a dealer in castor oil purchased the same for resale or for export on furnishing a certificate in form No. 16. In the course of handling the oil, a small percentage of oil remained at the bottom of the containers and was lost. Further some more quantity also was lost on account of spillage while being poured or transferred from one container to another. Visualising those circumstances, it was held that the assessee could not be said to have failed to carry out the terms of the certificate in not reselling or exporting the small quantity which was thus lost and as such loss was inevitable, the tax was not leviable on such shortage. There ....
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....to the inevitable wastage sustained during the course of the process for export. 9.. The next question for consideration is whether the shortage mentioned by the assessee could be the real shortage with reference to the quantity purchased by the assessee. In T.C.R. No. 329 of 1997 the loss is only 13.219 kgs. which is only 7 per cent in the total purchase. In T.C.R. Nos. 363 and 364 of 1997 as the loss is 3,678 and 70.159 kgs., the wastage is only 5.3 per cent and 2.4 per cent. In T.C.R. No. 59 of 1997 the shortage of 12.870 kgs. works out at 10.8 per cent. We feel that this percentage cannot be said to be on the higher side and there is every possibility for the loss of this quantity and therefore the levy of tax in T.C.R. Nos. 329 of 1997, 363 of 1997, 364 of 1997 and 59 of 1997 is not proper and has to be set aside. 10.. But in T.C.R. No. 330 of 1997 we hesitate to accept that there was wastage of 70.827 kgs. in the total quantity of 2,61,808 kgs. purchased by the assessee. The assessee had shipped only 1,62,997 kgs. and the accounts revealed the closing stock of 27,984 kgs. Therefore the shortage is 70.827 kgs. This quantity works out at 27 per cent. The wastage due to th....