TaxTMI 
TaxTMI 
2017 (12) TMI 1274
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....versy involved in the case in detail and only narration of few facts to appreciate the legal question arising in the case would suffice for disposal of this revision. 4. M/s Vijay Loha Bhandar, revisionist herein, started business for purchase and sale of Cement, Iron & Steel in the State of U.P. from 01.04.1985. 5. On 07.11.2001, the Sales Tax Officer, Special Investigation Branch (In short S.I.B.), Sitapur made a survey at the business premises of the revisionist and undated show cause notice under the second proviso of Rule 41 (8) of the U.P. Sales Tax Rules, 1948 (here-in-after referred to as the ''Rules, 1948') was issued by the Assessing Authority. 6. The revisionist duly replied to the aforesaid show cause notice vide his reply dated 30.09.2002, however, the assessment order under Rule 41 (8) of the Rules, 1948 for the year 2001-02 was passed by the Assessing Authority i.e. the Trade Tax Officer, Section-2, Lakhimpur. 7. Feeling aggrieved against the order dated 30.09.2002, the revisionist filed an appeal before the Joint Commissioner (Appeals)-IV, Sitapur bearing Appeal No.880 of 2002. The First Appellate Authority i.e. the Joint Commissioner (Appeal....
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.... which the imposition of tax on imported Cement or Iron & Steel and self manufactured the shutters/ channels etc. has been restored. 13. Sri Mishra, learned counsel for the revisionist, has also submitted that the First Appellate Authority has imposed tax on the revisionist on the basis of Section 3-AAAA of the Act, 1948. Section 3-AAAA applies only when the commodity is purchased by the dealer from the unregistered dealer or from a registered dealer under the circumstance in which no tax is payable by the registered dealer and such goods are not re-sold in the same form and condition within the State in the course of inter-state trade or commerce or in the course of export out of India. Sri Mishra has vehemently submitted that in the instant case, there is no allegation at any stage that purchased goods were re-sold, therefore, as per his submission, Section 3-AAAA of the Act, 1948 is not applicable on the facts of the case and the reliance of Section 3-AAAA of the Act, 1948 is clearly against the provisions of law. 14. Sri Mishra has drawn attention of this Court towards some portion of the judgment of the learned Tribunal whereby the case of Saru Smelting Pvt. Ltd. vs. Com....
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.... is misconceived inasmuch as there is no quarrel that the revisionist is a dealer but the definition under Section 2 (ee) of the Act, 1948 would be read in toto and as per the aforesaid definition the "Manufacturer" is a dealer who manufactures the goods. Therefore, every dealer may not be said to be "Manufacturer" but the "Manufacturer" can be said to be a dealer. Further, Sri Sarin could not controvert the factual submissions of learned counsel for the revisionist in respect of show cause notice, that is, no allegation was made against the revisionist regarding import of any Cement or Iron & Steel from outside the State or that it "Manufactures" any commodity within the State. 18. Having heard learned counsel for the parties and on perusal of the record of the case, I find force in the submission of learned counsel for the revisionist. The questions of law before this Court for adjudicating in the light of order dated 14.01.2009 passed by this Court are as under:- (I) Whether on the facts and circumstances of the case, the Hon'ble Tribunal was justified in law to confirm the tax on self-manufactured shutters/ channels in the absence of any evidence on record of any manu....
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....ii) of the Act. That provision applies to transactions between two registered dealers. No liability could have been created by a circular of the Commissioner. The definition of "Manufacturer" in terms of Section 2 (ee) does not encompass the case of the appellants. 6. In order to appreciate the rival submissions, the provisions of the Act and the circular issued by the Commissioner need to be noted. Section 2 (e-1) defines "Manufacture" and Section 2 (ee) defines "Manufacturer" while Section 3-AAAA deals with transaction regarding certain services. They read as follows:- "2(e-1) 'Manufacture" means producing, making, mining, collecting, extracting, altering, ornamenting, finishing, or otherwise processing, treating or adapting any goods; but does not include such manufactures or manufacturing processes as may be prescribed; 2(ee) 'Manufacturer' in relation to any goods means the dealer who makes the first sale of such goods in the State after their manufacture and includes: (i) a dealer who sells bicycles in completely knocked down form; (ii) a dealer who makes purchases from any other dealer not liable to tax on his sale und....
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....turer dealer who are not liable to pay tax under the act and do not pay tax because the manufacturer- dealer liable to pay tax, only if, its sales exceeds Rs. 1 lakh in any assessment year. To prevent the evasion of tax and in the interest of revenue, these dealers have been brought by bringing in amending Section 2 (ee) so as to include such within the definition of manufacturer." 9. According to the High Court, the object of enacting amendment to Section 2 (ee) was to prevent evasion of tax. Even if the aforesaid object is in any way relevant for the purpose of the present dispute, the object appears to be to levy tax on manufacturer-dealer and/or manufacturer-dealer who did not pay tax as his turnover did not exceed Rs. 1 lakh in any assessment year. 10. It was, therefore, necessary to be established that the seller was a manufacturer-dealer. Commissioner's circular could not have created a liability by drawing inference that the purchases from farmers who have been grown, cut or sawn timbers, ballis, bamboos will brings them within the umbrella of expression 'manufacturer'. The view that tax liability has been prescribed at the manufacturers and im....
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....on of law. It may, however, be different that only on the same set of facts the higher court takes a different view. {See Collector of Customs, Bombay vs. Swastic Woollens (P) Ltd. & Ors. [(1988) Supp. SCC 796]; and Metroark Ltd. vs. Commissioner of Central Excise, Calcutta [(2004) 12 SCC 505].} 25. Even in a case where evidence is misread, the High Court would have power to interfere. {See West Bengal Electricity Regulatory Commission vs. CESC Ltd. [(2002) 8 SCC 715]; and also Commissioner of Customs, Mumbai vs. Bureau Veritas & Ors. [(2005) 3 SCC 265].} 26. In M/s. Dutta Cycle Stores & Ors. vs. Gita Devi Sultania & Ors. [(1990) 1 SCC 586], this Court held : "Whether or not rent for the two months in question had been duly paid by the defendants is a question of fact, and with a finding of such fact, this Court does not ordinarily interfere in proceedings under Article 136 of the Constitution, particularly when all the courts below reached the same conclusion. But where the finding of fact is based on no evidence or opposed to the totality of evidence and contrary to the rational conclusion to which the state of evidence must reasonably lead, then this C....