TaxTMI 
TaxTMI 
2019 (4) TMI 1639
X X X X Extracts X X X X
X X X X Extracts X X X X
....Branch/Division of the Petitioner. 3.The Petitioner states that the aforementioned EOU's are subsidiary units of the Petitioner. As per Section 4-E of the TNGST Act, a 100% EOU is entitled to a refund of tax paid on purchase of goods, including consumables, packing materials and labels used by such unit in the manufacture, assembling, packing or labelling of goods manufactured within the state and sold by way of export by such unit. Section 4-E of the TNGST Act reads as under: "Refund of Tax in certain cases__ A registered 100% export oriented unit or unit located in the Madras Special Economic Zone shall be entitled for refund of the whole of the tax paid by it on the purchase of any goods, including consumables, packing materials and labels, but excluding plant and machinery, which has been used by such unit in the manufacture and assembling, packing or labelling of goods manufactured within the State and sold by way of export by such unit" 4.In respect of the assessment year 1996-97, the two units of the Petitioner purchased cotton for use in the manufacture of other goods for export and claimed refund of taxes under Section 4-E of the TNGST Act in a sum of Rs. 10....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the Original Assessment Order dated 05.05.1998 and, therefore, an appeal ought to have been filed. In the said order, it was further held that the Third Respondent had stated in the Original Assessment Order dated 05.05.1998 that separate findings would be rendered in respect of the claim for refund. In light of the fact that an order passed under Section 33 is not appealable under Section 31 of the TNGST Act, the Petitioner filed a Second Revision Petition before the First Respondent. The said Revision Petition was rejected by order dated 15.02.2006 by confirming the orders passed by the Second and Third Respondents herein without any discussion or consideration. The order dated 15.02.2006 is the Impugned Order in this Writ Petition. 8.The case of the Respondents is that the Petitioner is an assessee as per the books of the Third Respondent herein. It has two cotton procurement units for purchase of cotton locally for the manufacture of cotton yarn. The Petitioner claimed a refund of tax, under Section 4-E of the TNGST Act, corresponding to the tax paid on the purchase value of cotton. In view of the fact that the dealer is not a 100% EOU, the claim was correctly rejected by th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....requirement in that regard. 12.The affidavit, counter affidavit, documents on record and the oral submissions of both parties were carefully considered. 13.Before dealing with the merits, a preliminary issue needs to be briefly considered. As per the Order dated 03.12.2003, as confirmed by Impugned Order dated 15.02.2006, the order rejecting the refund claim is an appealable order and, therefore, the revision petition is not maintainable. However, in the instant case, the Original Assessment Order dated 05.05.1998 records that the Petitioner is entitled to refund and that the refund would be made separately. Therefore, the Petitioner had no reason to challenge the Original Assessment Order. Subsequent thereto, the grievance of the Petitioner is that the refund was not made and upon issuance of reminders, in that regard, the refund claim was rejected on 29.11.1999. Aggrieved by the order rejecting refund, the Petitioner filed a revision petition under Section 33 of the TNGST Act because it is a non-appealable order under Section 31 thereof. According to the Petitioner, the Revision Petition was filed on the above basis and not on the ground that a rectification order was pa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ng ascribed to the word 'unit' in the aforementioned dictionaries is applied and viewed in the factual context of the Registration Certificate and the Assessment Order, it becomes clear that the two units are constituents of the Petitioner. 16.This leads to the question as who is entitled to make the application for refund: should it necessarily be made by the unit or could it be made by the dealer albeit in respect of the 100% EOUs. The answer to this question is also fairly simple: if the unit is a distinct legal entity and, more importantly, is registered as a dealer in its own right, the unit should make the application; if not, only the legal entity/registered dealer should make the application albeit by confining the refund claim to the taxes paid by the 100% EOU. 17.The other aspect to be considered is whether the condition prescribed in Rule 23(2C) read with Form A-5 is satisfied in the instant case. As stated earlier, the documents evidence payment of taxes by the two units on the cotton purchased by them for making goods for export but taxes were not paid to the sellers because of the point of imposition of tax on purchase of cotton. Therefore, the question ....