AI Drafter 
TaxTMI 
TaxTMI 
2008 (7) TMI 881
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....ace in the State of M.P. The petitioner has submitted that the petitioner is a company involved in the business of manufacture and sale of cigarettes and smoking mixtures. The company has entered into an agreement with Reliable Cigarette and Tobacco Industries, Mandi Deep, Bhopal, for manufacture of cigarettes. As per the agreement the petitioner-company is required to supply all necessary raw materials to the job-work manufacturer. The petitioner-company through its branch at Bhopal causes entry of all the raw materials including packing materials. Throughout the entire process the ownership of the raw materials including packing materials and also of the finished goods at all times remain with the petitioner-company. The petitioner is purchasing raw material through its factory-cum-administrative office at Saharanpur (U.P.). The raw material is consigned to the petitioner's own factory as well as job-work manufacturers at different places in India including Reliable Cigarette and Tobacco Industries. For the purpose of consumption in manufacturing, cut tobacco was dispatched after processing by ITC Limited, Bangalore. It was consigned to Reliable Cigarette and Tobacco Indus....
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.... No. 76 the Check-post Officer has alleged that the buyer of cut tobacco is RCT whereas RCT is an additional place of business of the petitioner as a job-work contractor for manufacturing of cigarettes. The goods consigned to RCT at no point of time belongs to RCT. The RCT under the agreement dated April 25, 2000 is only a bailee of the goods supplied by the petitioner to be used for the purpose of manufacture of cigarettes. The petitioner's emphasis is on additional place of business. There was no sale made to RCT. Commissioner of Commercial Tax of M.P., as per his circular dated May 29, 2002 had issued a clarification that for availing CENVAT under the Central Excise Rules the name on the bill/invoice may be different than that of the actual buyer. It was thus clarified that form No. 75 should not be refused only on the ground that name in the invoice mentioned as buyer and consignee are different. There was no illegality/irregularity in the form of declaration submitted by the petitioner. Assessments were made which indicated that RCT was not the purchaser. It is further submitted that under the guise of evasion of tax State lacks legislative competence to enact the provisio....
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....nder. It was found that the truck bearing No. MOD-6468 carried form No. 75 in the name of ITC Limited, Plot No. 8, 3rd Floor Ranjeet Tower, Zone 2, M.P. Nagar, Bhopal bearing TIN No. 23174001316 (i.e., the tax identification number). Only the person to whom the form No. 75 is issued can be a consignor. Whereas the sale invoice accompanied with form No. 75 mentions that the name of the consignee is Reliable Cigarettes and Tobacco Industries Pvt. Limited, Mandideep and also the name of buyer and dealer contains ITC Limited, 306, Sardar Patel Marg Post Office, Box 25, Saharanpur, U.P., the builty of OTS Limited mentions that the consignee is M/s. Reliable Cigarettes and Tobacco Industries Limited, Mandideep and way-bill issued by the Commercial Tax Department, Andhra Pradesh where the name of the addressee is ITC Limited, Guntur and the name of the consignee is Reliable Cigarettes and Tobacco Industries Limited. It is strange that the name of ITC, Bhopal except in the form No. 75 is missing in each and every document. Apart from this the sale invoice mentions the sales tax number of Reliable Cigarettes and Tobacco Industries Ltd., the way-bill dated November 27, 2003 of ITC, Guntur me....
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....t the vehicle on which tax could not be realised under the Commercial Tax Act. The goods were in the process of manufacture, consequently, it was not open to take action under section 45A of the Commercial Tax Act, 1994. He has also submitted that in section 13 of the Entry Tax Act provision of section 45A was inserted by way of Ordinance, 1994. The show-cause notices issued earlier in 1993 under section 45A were without authority. Counsel has further submitted that since request form/documents were submitted in compliance with provisions of section 45A of the Commercial Tax Act, the action of the authority to intercept the vehicle was unauthorised particularly considering previous transactions where no such action on similar papers was taken. The assessment of ITC, Bhopal, was made on the basis of goods for the purpose of entry tax on the basis of similar transaction. Shri G.N. Purohit, learned Senior Counsel, has further submitted that the decision of the apex court in Sodhi Transport Co. v. State of U.P. [1986] 62 STC 381 runs contrary to the dictum of the decision of the apex court in Check-post Officer v. K.P. Abdulla and Bros. [1971] 27 STC 1 rendered in the context ....
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....n, the decision in Check-post Officer v. K.P. Abdulla and Bros. [1971] 27 STC 1 (SC) was rendered in different context and provision of section 45A of the M.P. Commercial Tax Act cannot be declared ultra vires on the strength of the aforesaid decision, particularly, in view of the decision of the apex court in Sodhi Transport Co. Ltd.'s [1986] 62 STC 381 and two decisions of the Division Bench in Buildworth Private Ltd. v. Sales Tax Officer [1997] 106 STC 365 (MP); [1996] 29 VKN 482 and Bhoruka Roadlines Pvt. Ltd. v. Sales Tax Officer [1995] 28 VKN 202. Coming to facts of the instant case it is a disputed question of fact whether the goods were being transported, during the course of production or in fact sale has taken place. In show-cause notice it was mentioned that the purchaser was shown as RTC. In form No. 75 which was issued, consignee was shown as ITC. On facts, this question was required to be decided by the authority issuing the notice whether there was sale, or it was a case of transportation during the course of production. It could not be said that the action was unauthorised, particularly in view of the notification dated May 6, 2002. Thus, it cannot be said th....