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2015 (11) TMI 1496
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...., Ahmedabad (hereinafter referred to as "the Tribunal") in Second Appeal No.358 of 2014 by proposing the following two questions stated to be substantial questions of law :- "(1) Whether the Hon'ble Tribunal in the facts and circumstances has erred in law and in facts in holding that the dealer is entitled to claim exemption under section 5A despite of failure to obtain endorsement of custom authority on the bill as required by Rule 42(2A) ? (2) Whether the Hon'ble Tribunal in the facts and circumstances has erred in deleting levy of interest and penalty?" 2. The respondent assessee is engaged in the business of execution of construction contracts. The assessee entered into a contract with Adani Power Limited for design....
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....authority", before whom it was submitted that the goods were sold to Adani Power Limited which is a co-developer and, therefore, the assessee was entitled to exemption as zero rated sale under section 5A of the Act. It was brought to the notice of the first appellate authority that the purchase bills were endorsed by the customs/SEZ authorities before their entry into the SEZ for use in execution of the works contract. The first appellate authority, however, dismissed the appeal on the ground that the running bills which were issued by the assessee to Adani Power Limited did not bear the endorsement of the customs/SEZ authority. For this purpose, the first appellate authority placed reliance upon rule 42 (2A) of Gujarat Value Added Tax Rule....
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....le 42 of the rules in proper perspective. It was submitted that sub-rule (2A) of rule 42, specifically requires that the copy of the bill should be endorsed by the customs authority for the assessee to be entitled to exemption of tax under section 5A of the Act. It was submitted that in the facts of the present case, the running bills which were submitted by the assessee were not endorsed by the customs/ SEZ authority and that it was the purchase bills which had been endorsed by the concerned authority. Therefore, in view of the provisions of rule 42(2A) of the rules, the respondent assessee was required to furnish duplicate of the invoice bill endorsed by the customs authority for the purpose of obtaining exemption under section 5A of the ....
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....orrent Energy Limited v. State of Gujarat, (2014) 71 VST 582 (Guj.), wherein the court has held that by virtue of the non-obstante clause contained in section 22 of the 2004 Act, such provision has effect notwithstanding anything contained in any other law for the time being in force. The expression "for the time being in force" would include even legislations made at a later point of time and such expression would be akin to the law for the time being in force. The non-obstante clause contained in section 22 of the 2004 Act, thus, would give overriding effect to the provisions of the State Acts, those not only existing, but made later on. The court, accordingly, held that the demand raised by the respondent authorities for payment of purch....
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....ioner and the Adani Power Limited, which is in the nature of a works contract, when construction materials are purchased by the assessee, they are purchased for sale in the course of execution of works contract, which is to take place at a later point of time on the principle of accretion. Therefore, at the time of entry of goods into the SEZ area, there is no sale to the SEZ unit or to the developer, but the sale takes place at a later point of time. In view thereof, the assessee with a view to ensure compliance with the provisions of the SEZ law as well as requirement of endorsement of bills with a view to claim exemption from tax as zero rated sale, obtained the endorsement of the concerned authority on the purchase bills for goods which....
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....e jurisdictional High Court in the case of Torrent Energy Limited v. State of Gujarat (supra) wherein it is held thus: "It can, thus, be seen that after April 1, 2008, the VAT Act has made provisions for collection of purchase tax even from units located in SEZ areas in relation to "zero rated sale". The legislative scheme appears to be that the sales which fall under the "zero rated sales" would invite no sales tax to be borne by eh seller, but the purchaser would have to pay the purchase tax and, in turn, would be entitled to take tax credit as provided under section 2(37) and section 11(1) of the VAT Act. Whatever be the intention, in our opinion, without there being any clear provision giving such statutory provisions primacy o....