TaxTMI 
TaxTMI 
TaxTMI 
2015 (1) TMI 178
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....e of fountain pens and ball pens sold at a price upto Rs. 30/- per piece during the period 01-10-1995 to 31.03.1997 covered by Notification Entry A-23 ?" 3. For the sake of convenience, we will refer to the facts in Reference Application No.137/2003 in brief :- By notification issued under Section 41 at serial No.304 (old) (pens) sold at a price not exceeding Rs. 30/- per piece and part thereof and ball pens upto Rs. 25/- per piece were exempt from the whole of the tax for the period 1st April, 1995 to 30th September, 1995. A similar notification was issued w.e.f. 1st October, 1995 under a new group entry A-23 of the notification under Section 41 of the Bombay Sales Act, 1959. The Applicant in the above matter is a partnership concern manufacturing, selling and exporting pens and ball pens (the goods). The Applicant is registered under the Bombay Sales Act, 1959 ('the Bombay Act') as well as Central Sales Tax Act, 1956 ('the Central Act'). It was assessed for the period from 1st April, 1995 to 31st March, 1996. The Applicant's claimed set off under rule 41D of the Bombay Sales Tax Rules, 1959 ('Rules') which was partly allowed by the Assessing Officer. 4. Being dissatisfied with....
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.... exemption was granted, or (b) any of the recitals or the conditions of the declaration." are not complied with, for any reason whatseover, [or, in any other case, where such dealer or person was not entitled to issue {such declaration, then, without prejudice to the other provisions of this Act] such dealer or person, shall be liable to pay purchase tax on the purchase price of the goods so purchased, and the purchase tax shall be levied at the rates set out against each of such goods in column 4 of Schedules B and C, notwithstanding that such dealer or person was not liable to pay tax under section 3, and accordingly the dealer or the person who has become liable to pay purchase tax under this sub-section shall file return in the prescribed form to the prescribed authority within a prescribed time and shall include the purchase price of such turnover in his return, and pay the tax in the prescribed manner. The tax due from any such dealer or person shall be assessed or re-assessed under section 33 or 35, as the case may be : Provided that, the amount of tax (if any) paid by the dealer or such person to a Registered dealer on such purchases, on which he has become liable to pay ....
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....s effected prior to the 1st April 1998 and also in respect of capital assets on which depreciation has been earlier claimed by any other person or dealer and which have been purchased by the claimant dealer on or after the 1st April, 1998, Provided also that, the claimant dealer shall not be entitled to claim any drawback, set-off or refund in respect of purchases of molasses and rectified spirit used by him in the manufacture of country-liquor and Indian Made Foreign Liquor. Provided also that, set-off under this rule shall not be granted to a dealer, in respect of purchases of goods, which are used by him in the manufacture of goods, treated as capital assets by him or parts and components of such capital Provided also that, the claimant dealer shall not be entitled to claim any drawback, set-off or, as the case may be refund of the sum mentioned in clause (a) of rule 44D in respect of purchases of the goods purchased against declaration in Form A1 in accordance with the entry 148 of Group "A" of Schedule appended to the notification issued under section 41 of the Bombay Sales Tax Act, 1959. (2) For the purpose of this rule the expression "export" shall include. (i) a sale i....
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....d 30th June, 2003 inter alia pointing out that the Deputy Commissioner of Sales Tax had erred in revising the assessment order in a summary manner and erroneously. According to him, the first Appellate Authority had erred in law and on facts in working out the ratio for proportionately reducing the set-off under Rule 41D considering the export of exempted goods. He has submitted that the assessee has not claimed exemption from the sales tax under section 41 for the goods which are exported out of the territory of India. 11. Having considered the facts, we find that the Tribunal has observed in the course of disposing of the second appeal that there is no dispute that when the goods are wholly exempted or chargeable below 4% locally, then inter state sales of those goods are also exempted from tax. The Tribunal observed that after examining, notified entry A-23, it appeared that the exemption is a general and price linked exemption which could be availed by any dealer. 12. The Tribunal then proceeded to decide whether the sales of fountain pens and ball pens sold at a price below Rs. 30/- per piece in the course of export out of the territory of India should be taken into consider....
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....ce with the principles formulated in sub-section (2) of section 4 of the Central Sales Tax Act, 1956. (b) ........... " 15. The Tribunal found that the sales of fountain pens and ball pens sold at a price not exceeding Rs. 30/- and Rs. 25/- respectively per piece are wholly exempted from tax from 1st October, 1995 to 30th April, 1997 but at the same time as per standard condition No.3 in Annexure-I, the dealer can be entitled for set off under rule 41D on the purchase of goods used by him in the manufacture of those impugned goods. According to the Tribunal, condition No.3 in Annexure-I which read as under, excludes export sales and is restricted to local sale :- "The claimant dealer shall not be entitled to claim any draw-back, set -off refund under the Bombay Sales Tax Rules, 1959, in respect of the purchase of goods used by him in the manufacture or packing of goods referred to in column 2 of this entry. " 16. According to the Applicant, they have not claimed any exemption from the sales tax under Section 41 and, therefore, the standard condition No.3 in Annexure-1 referred to in column (4) of Entry A-23 reproduced above was not applicable to them as far as the export of goo....