TaxTMI 
TaxTMI 
2015 (7) TMI 463
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....er of Sales Tax by 1.5% by calculating the exports at 96.1% in place of 97.6% calculated by the Sales Tax Officer after excluding the sales of scrap ?" 2. The factual backdrop in which these questions have been referred needs to be noticed. The applicant-assessee is manufacturer of steel files and rasps. The assessee holds an Entitlement Certificate under the Package Scheme of Incentives 1993 for the period 4th December 1998 to 31st December, 2003 with monetary ceiling of Rs. 1,32,48,400/-. The assessee is an export oriented unit certified by the Government of India. The Sales Tax Officer assessed the assessee for the period 1st April, 1999 to 31st March, 2000, and allowed full set off under Rule 41-D(3)(c)(ii) of the Bombay Sales Tax Rules, 1959, as the unit was an export oriented unit. The assessment resulted in refund in the sum of Rs. 15,67,499/-. The assessment under the Central Sales Tax Act, 1956, resulted in demand of Rs. 2,01,536/-. As against the refund under the Bombay Act, the dues under the Central Act were adjusted. 3. From the record it appears that the Deputy Commissioner of Sales Tax, Nasik Division, Nasik noticed an illegality and irregularity in the order of th....
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....s itself. If any scrap or waste results and which is not a final product nor is the assessee dealing in scrap and waste materials then the language of the Rule ought to be borne in mind by the Tribunal. The Revisional Authority and the Tribunal, therefore, were in complete error in denying the relief. 7. On the other hand, Mr. Sharma appearing on behalf of the Revenue would submit that the revisional order rightly considers the issue. That has been upheld by the Tribunal. There are concurrent findings of fact. He relied upon the revisional order and particularly the discussion therein to the effect that the dealer has not set out the correct details and of export sale. The determination of the export sale has to be correlated with the ratio of scrap sale. Precisely that has been done in the present case and insofar as the other aspect is concerned, viz. the second question, Rule 41-D(3)(b) covers parts, components and accessories of capital assets for retention. In the present case, the dealer has not disclosed or has not treated the goods as capital assets, but has treated them as consumables. That cannot change the nature of the same and even on the second question, this Court m....
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....apital assets Provided also that, the claimant dealer shall not be entitled to claim any draw-back, 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 in the course of inter-State trade and commerce or in the course of export of the goods out of the territory of India, where such sale occasions the movement of the goods from the State, (ii) despatches made by the claimant dealer to a person outside the territory of India, with a view to selling the goods to the said person and the said goods have actually been sold to him within the period of one year from the date of despatch, and (iii) despatches made by the claimant dealer to his own place of business or to his agent outside the State where the claimant dealer produces certificate in Form 31C issued by his manager, or as the case may be, his agent declaring inter alia that the goods which ....
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....this rule has been increased or reduced in accordance with the Second or Third proviso to rule 44D, then, the purchase price determined in accordance with the Table shall be increased or reduced in a like manner; Provided further that, if the claimant dealer proves to the satisfaction of the Commissioner that the surcharge or the turnover tax is not included in the purchase price referred to in sub-rule (1), then the Commissioner may for the purpose of calculation, as per the formula given in the Table, exclude the component of the surcharge or as the case may be, the turnover tax Provided further that, if the claimant dealer proves to the satisfaction of the Commissioner that surcharge, turnover tax or as the case may be, resale tax is not included in the said purchase price, then the Commissioner may for the purpose of calculation as per formula given in the Table, exclude the component of surcharge, turnover tax or as the case may be, resale tax. (4) Nothing contained in sub-rule (1), (2) and (3) shall apply in respect of any purchases made by the claimant dealer where on an earlier transaction of purchases of these goods for use in the manufacture of goods for sale a drawback....
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....s carrying on business of export of goods. At the relevant time, he purchased goods and utilised them for manufacturing the finished product / the goods which came to be exported by him. That is how he approached the authorities. The refund was worked out by the Sales Tax Officer and when he arrived at the same, he considered the submission of the dealer regarding determination of percentage of export sales. He has specifically held that in the process of manufacture, scrap is generated which is sold locally and if the ratio of such sale is ignored then the determination of percentage of export sale will not be correct because scrap is not exported. Therefore, the ratio of scrap sales while working out the percentage of export should be taken into consideration and that is how he determined the percentage and by his order he has concluded that the dealer is 100% export oriented unit certified by the Government of India as is valid upto 4th December, 2001. The ratio of export is 97.6% and domestic sales, including sales of OMS are effected at 2.4% of the total sales effected during the period. Therefore, set-off under Rule 41-D was worked out by him. Then, he also arrived at the fig....
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....pplication because the goods have been exported. The expression "export" has been defined in an inclusive manner and it includes despatches made by a claimant-dealer to a person outside the territory of India with a view to selling the goods to the said person and the said goods having actually been sold to him within a period of one year from the date of despatching. The export is also a despatch made by the claimant-dealer to his own place of business or to his agent outside the State and thereafter he has to produce the requisite certificates. We are concerned in the present case with the proviso below clause (2) of sub-rule (1) of Rule 41-D where the Legislature has clarified that where the turnover of sale of such manufactured goods consists principally of sales of waste or scrap goods, then the claimant-dealer shall not be entitled to any drawback, set-off or as the case may be, a refund under this Rule. It is not the conclusion drawn by both authorities in the present case that the turnover of sales of the manufactured goods and intended for export and in fact exported consisted principally of sale of waste or scrap goods. The words "consists principally of sales of waste or....