TaxTMI 
TaxTMI 
2011 (5) TMI 872
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....ther and are being decided by a common judgment and order. The opposite party Godrej & Wires Manufacturing Co. Ltd., Kanpur, is a dealer carrying on business of steel furnitures, refrigerators, etc. In these revisions, I am only concerned with the business of sale of refrigerators by the aforesaid opposite-party/dealer. The opposite-party/dealer gets refrigerators from Mumbai for sale in U.P. The refrigerators from Mumbai come in a packing which is in two parts; primary and secondary. The primary packing is generally of paper with a outer cover of card-board. This in trade practice is called primary packing. The refrigerators after primary packing are further packed in temporary wooden cases which is called secondary packing. This second....
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....thority accepted forms IIID submitted on behalf of the opposite-party/dealer in additional evidence in exercise of its power under section 12B of the Trade Tax Act. It directed for exclusion of Rs. 450 from the taxable turnover on the ground that it related to service charges and, as such, was not part of the price of the refrigerator. On the value of the secondary packing tax at a lower rate of six per cent was directed to be paid in view of notification dated September 7, 1981. Aggrieved by the order of the first appellate authority, the Commissioner, Trade Tax, preferred appeals to the Tribunal. The appeals have been dismissed vide order dated October 23, 2003, affirming the order of the first appellate authority. Hence, the Commissione....
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....he said forms were fictitious in nature. No additional evidence in rebuttal was also produced by the Department. As such, the first appellate authority had not committed any error of law or jurisdiction in accepting the same as part of the evidence. The order of the first appellate authority also records that the representative of the Trade Tax Commissioner had not produced any evidence in rebuttal to the aforesaid additional evidence of the opposite-party/dealer and at the same time had failed to take any objection against its admission. The above factual position recorded by the two authorities below clearly indicates that the representative of the Trade Tax Commissioner was given opportunity to rebut the additional evidence produced by....
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....been substituted in the above provision subsequently. In view of above, no illegality has been committed by the first appellate authority in accepting the additional evidence adduced by the oppositeparty/dealer and the Tribunal has rightly affirmed the same. The question of law No. (iii) as proposed is without substance and stands rejected accordingly. The second argument of learned counsel for the revisionist is that secondary packing material of the refrigerator was taxable as part of the turnover at the same rate as refrigerators at the rate of 12 per cent. It is admitted on record that the opposite-party/dealer had sold some refrigerators with secondary packing and most of them with only primary packing, which had no value. The valu....
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....ii) of law is answered in favour of the opposite-party/dealer and it is held that the secondary packing material of refrigerator is taxable at the rate of six per cent only. This lead me to the next argument of learned standing counsel that a sum of Rs. 450 charged by the opposite-party/dealer towards warranty for the refrigerators is also liable to tax as part of the turnover and the first appellate authority and the Tribunal erred in holding otherwise. In the present case the findings of the first appellate authority and the Tribunal are to the effect that on the sale of the refrigerators the customers were extended warranty for a period of one year whether the sale happens to be in bulk or in retail. Thereafter an option used to be giv....
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....rabad Allwyn Metal Works, Unnao [2005] 26 NTN 415. In the said case it was clearly held that service charges for maintenance and repair of refrigerators under the optional scheme after the expiry of warranty period are not part of the turnover under section 2(i) of the Act. The above case law squarely covers question No. (i) proposed to be raised by the learned standing counsel and the same is no longer res integra. The decision of the Supreme Court in the case of Mohd. Ekram Khan & Sons v. Commissioner of Trade Tax [2004] 136 STC 515 (SC); [2004] UPTC 1198 (SC) relied upon by the learned Standing Counsel is distinguishable and is not applicable to the facts and circumstances of the case. In the said case the dealer had made supply of par....