Held ... Yes.
When one contractor is supplying material required for
preparing foods to the company and another contractor is engaged by the
company for preparing the foods on a fixed monthly charges, whether the
benefit of Notification Entry F-5 is admissible to the company?
Held ... Yes.
The learned Commissioner in a determination proceedings
held that Re. 1/- per worker per shift collected by the company would amount
to sale price and is liable for sales tax. The appellant contended before the
Tribunal that no particular goods are specified against Re.1/-. Relying on the
judgment of the Supreme Court in Gannon Dunkerly & Co. (9 STC A353) (SC),
the appellant submitted that in order to constitute a sale, basic ingredients
such as; (i) there has to be two parties to the contract;(ii) subject mater
should be movable goods; (iii) consideration should pass and delivery of very
same goods which is subject matter of sale and transfer of property therein to
the purchaser have to be fulfilled. According to the appellant when Re.1/- is
collected from the worker no specific goods are sold and hence it cannot be
said there is a sale of foods. Reliance was also placed on the decision of the
Supreme Court in Neyveli Lignite Corporation Ltd. (124 STC 586 and TISCO
General Office Recreation Club (126 STC 547). Tribunal held that the foods
prepared in the canteen is served to the company workers after deducting
Re.1/- from their salary. The sale by the factory directly to the worker would
amount to a sale and the Tribunal distinguished the facts of the case in
Skyline Caterers (DDQ 196/Adm-5/954-B-3) and Annapurna Caterers
(DDQ-11/2000/Adm-5 dated 17-5-2000). For the same reasons the Tribunal also
held that when the canteen is run by the company itself and the foods are
supplied by the company to its workers, the benefit of Notification Entry F-5
is admissible
to it.
(Bayer India Ltd. vs. The State of Maharashtra – Appeal
No.180 of 2004 dated 13th April, 2007. The judgment is delivered at the Fourth
Bench of the Tribunal by the Hon’ble Member Mr. A.V.Naik. The appellant was
represented by C.B. Thakar, Advocate.)
Held ... Yes.
The appellant claimed certain sales in the course of
import. The assessing authority at the time of assessment found that the claim
under section 5(2) of the Central Act is not admissible and he disallowed the
claim and levied tax under the Bombay Sales Tax Act, 1959. The assessment
under the Bombay Sales Tax Act resulted in demand and the order under the
Central Act resulted in Nil demand. The assessee filed First Appeal before the
Appellate Deputy Commissioner against the order passed under the Bombay Sales
Tax Act and no appeal under the Central Act was filed who confirmed the
assessment order and dismissed the appeal. Before the Tribunal the appellant
pleased that the High Seas Sales may be allowed as provided under Article 286
of the Constitution. Alternatively it was submitted that ultimately the goods
have moved from Maharashtra to Gujarat and the sale is therefore liable to be
taxed under the Central Act and not under the Local Act. As the appellant had
not filed any appeal under the Central Act the question arose as to the
maintainability of appeal filed under the Bombay Act and the matter was
referred to the Special Bench.
Before the Special Bench the appellant argued that the
authorities have held that on application of the principles laid down in
section 5(2) of the Central Act the impugned sale cannot be considered to be
in the nature of sale in the course of import. Though the buyer is situated in
other State, the assessing authority while denying the status of "sale in the
course of import" held the sale to be a local sale having taken place within
the State of Maharashtra and accordingly assessed it to tax under the Local
Act. On the background of these facts the appellant is obviously aggrieved by
the assessment order under the Bombay Act and therefore the appellant could
not have sought redressal of his grievance regarding denial of tax exemption
guaranteed by the Article 286 without filing an appeal against the assessment
under the Bombay Act. According to the appellant the right to appeal is a
substantial right and it cannot be denied merely because an appeal is not
filed against some other order for which there is effectively no grievance.
According to him the appeal is maintainable for being decided on merits. The
revenue argued that as there is no appeal under the Central Act the assessment
under the Central Act has reached a finality and therefore the present Second
Appeal under the Bombay Act has rendered non-maintainable.
The Tribunal referred to the provisions of section 55 and
observed that on the background of these provisions if an assessee is
aggrieved by any order passed under the Bombay Act or the Bombay Rules and if
such order is not a non-appealable order as per section 56, then the assessee
has a substantive right to appeal against such order for the redressal of his
grievance. If the appeal filed by him is otherwise in order having complied
with all the statutory conditions and requirements, then such an appeal is
undoubtedly maintainable. The Tribunal went on to observe that the impugned
transaction was held as a sale under the Bombay Act. The appellant is
therefore, aggrieved by the determination of tax liability under the Bombay
Act and he has a substantive right to appeal against it and seek redressal of
his grievance thereagainst. According to the Tribunal the fact that the
disputed claim is under some other Act and the assessment under that Act is
not appealed against, is not at all relevant for the said purpose. The
Tribunal held that even if the impugned claim of sale in the course of import
is held to be under the Central Act, even then the present appeal under the
Bombay Act would not render non-maintainable for the reason of non-filing of
appeal
against the assessment under the Central Act.
The Tribunal also dealt with the submission of the
department that the impugned claim is under the Central Act and therefore the
disallowance thereof ought to have been agitated by filing an appeal under the
Central Act, the Tribunal considered the provisions of section 5(2), Article
286, preamble to the Bombay Sales Tax 1959 and Central Sales Tax, 1956 and the
Return forms prescribed under both the Acts. The Tribunal also distinguished
the facts in K. Mohan & Co., and Crisana Synthetics Pvt. Ltd., heavily relied
by the revenue in support of its line of argument. The Tribunal concluded that
in the present reference the appeal filed under the Bombay Act would be
maintainable even when the claim of the appellant under section 5(2) of the
Central Act is disallowed in the assessment order under the Central Act and
the impugned transaction is taxed under the Bombay Act and when the appellant
has filed appeal under the Bombay Act only and has not filed any appeal under
the Central Act.
(Mukeshkumar & Brothers vs. The State of Maharashtra –
Second Appeal No. 2278 of 2001 dated 7th April 2007. The judgment is delivered
at the Special Bench of the Tribunal by the Hon’ble Member Mr.G.G. Kochrekar.
The appellant was represented by C.B. Thakar, Advocate.)
