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2018 (5) TMI 1283

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.... forms. 3. Aggrieved over the same, the assessee/respondent filed appeal in CST No.154 of 2004 before the Appellate Assistant Commissioner (CT) I, Chennai. Vide order, dated 19.09.2001, the appellate authority, has confirmed the assessment and dismissed the appeal, as hereunder: "5. I have heard the arguments of both the sides with connected records. The Assessing officer has assessed the appellants on a turnover of Rs. 7,61,710/- at 10% towards the sale of waste paper. The Authorized Representative who has appeared at the time of final hearing has argued that the sale of old newspaper is not liable to tax and he has also relied on the judgment reported in 85 STC 1 (SC) 1992 dated 31.8.98 wherein it was held that "old news paper in also news paper". The Departmental item waste paper has been included in the First Schedule under item 83-A of Part-B of the First Schedule. Therefore the same is liable to tax. The arguments of the Departmental Representatives that the old news papers were sold in weight along with other waste papers and sold in bulk. Therefore the same cannot be treated as newspapers. The arguments of the Departmental Representative are reasonable and justifiable. t....

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....also "newspapers" and would be entitled to the exemption provided under the Constitution is acceptable. We accordingly uphold the contention of the appellant and direct that old newspapers when sold as such would be covered by the exemption provided in the Constitution and sale thereof would not be liable to sales tax. The appeals are allowed so far as the sale of old newspaper is concerned." From the decision cited supra of the higher judicial forums and respectfully following the decisions cited supra, we are of the considered opinion that the sales turnover of old newspapers effected by the appellant is covered by the exemption provided in the constitution and therefore, the sale thereof would not be liable to sales tax. Hence the assessment by the learned Assessing Officer on the sales turnover of Rs. 7,61,710/- on the old newspapers is not warranted and therefore not sustainable in law. Hence the assessment is set aside and deleted. Naturally, interference is called for on the learned Appellate Assistant Commissioner's order in respect of the turnover of Rs. 7,61,710/- on the sales turnover of old newspapers and we are categorically and unanimously taken view that the sa....

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....e Tribunal, the State has filed the instant Tax case (Revision), on the following substantial question of law: "Whether in the facts and circumstances of the case, the Tribunal is legally correct in having held that sale of old newspaper would be covered by the Entry 54 of List II and entry 92 of List of the Seventh Schedule to the Constitution of India even when old newspapers were sold as waste paper and not with reference to their news content or for the purpose of reading?" 6. In support of the above substantial question of law, the petitioner has raised the following grounds: "1. The tribunal has failed to appreciate that the intention between the parties was to sell and purchase waste paper, even though they were old newspaper. 2. The tribunal has failed to consider that there was no evidence to the contrary that the purchases were effected in relating to the news content in the old newspapers and for the purpose of reading as both the selling dealer and the purchasing dealer were exclusively dealing in waste papers. 3. The Tribunal ought to have appreciated that the decisions of the Apex Court cited in favour of the assessee were rendered in a different context, na....

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....gment rendered at a later point of time, proximate and which has considered the decisions of the Hon'ble Apex Court, will prevail over the former. Reference can be made to few decisions, (i) In D.V. Lakshmana Rao Vs. State of Karnataka reported in 2001 (4) KAR.L.J. 185, the Karantaka High Court has held thus: "It is now well-settled that if there are two conflicting judgments of the Supreme Court, of Benches with equal number of Judges, then the latter will prevail over the earlier. But where the earlier judgment is of a larger Bench and the latter judgment is of a smaller Bench, then the decision of the larger Bench will be binding..... When there is divergence between decisions of two co-ordinate Benches of the Supreme Court, the latter decision should prevail. The exception arises where the first decision specifically considers a particular question and lays down the principles relating to the question and the subsequent decision, without noticing the earlier decision or the principles laid down therein, and without examining the question, renders an assumptive decision. In such a situation, the earlier decision which considered the question and lays down the principle wi....