6. Whether there was propriety in invoking revisional jurisdiction u/s 57

Held : No.

The appellant is a small hotelier wherein he is serving south Indian dishes, tea, coffee and other snacks. The appellant was assessed for the periods 1992-93 and 1993-94. Appellant filed returns and claimed deduction u/r. 46A. The notification entry 191 was subsequently amended and substituted w.e.f. 1-4-1992. As per this substituted notification, appellant revised his return, and did not claim any deduction u/r. 46A. The Sales Tax Officer, assessed the dealer as per this notification entry, without giving deduction u/r. 46A. The result of assessment was refund of excess payment of tax.

The revising authority initiated revision proceeding on the grievance that appellant had claimed deduction u/r 46A. The Dy. Commissioner of Sales Tax, Pune confirmed the revision order, simply dismissing the appeal.

In Second Appeal before the Hon’ble Tribunal appellant assailed the legality and propriety of revision orders.

The Tribunal observed that revised return filed by the dealer are not filed to make some correction and addition in the original return, but the same is revised on the basis of instructions issued by the Department in consonance with amended notification. Therefore these revised return will have to be treated as original return for the purpose of assessment, therefore any information or the particulars given in earlier returns cannot be subject matter of revision. The superior officer has been empowered to examine the record of any order passed u/s 57, of the BST Act, means be can examine the record which has been considered or rather say which can be considered for passing the assessment order. The assessment order has been passed independently on the basis of the revised return. Thus, there is no proppriety in invoking the revisional jurisdiction on the basis of earlier returns which has lost its evidential value and cannot be subject to any tax liability in the premises of substituted Notification Entry.

Revision order are set aside and assessing officer is directed to refund the amount which as withdrawn in revision order.

(M/s. Kamat Hotel, Solapur SA No. 2298 and 2299 of 1998 on 17-3-2006.
The judgment was delivered by Shri G. D. Parekh, President, First Bench.
Shri A. B. Ghanekar, STP appeared for the appellant).

7. Whether the "Computer Table" and "Steel Almaria" can be classified as Scientific Instruments and enjoy exemption if sold against Form AP to educational Institution

Held : No.

The appellant has sold Computer Table, and Steel Almaria to Principal Laxminarayan Agarwal Memorial Institute of Technology, Dhamangaon against declaration in Form AP. The STO disallowed the same because against Form AP only "Scientific Instruments" can be sold, and goods sold by the appellant are not "scientific Instruments’. In first appeal before the Assistant Commissioner, order passed by the STO was confirmed.

In Second Appeal before the Tribunal appellant submitted that in Zenith Computers (101 STC 242) Bombay High Court defined that "the expression" "scientific equipment and instruments" is an expression of wide import and takes within its sweep not only instrument which in the ordinary definition or in the acceptation of experts would fall within the category but also instruments which are designed for sue and principally employed, in any branch of science, either for the purpose of observation, experiment or instruction or in connection with
the professional practice of particular science.

Appellant also relied on the decision of Tribunal in the case of Photo Phone Pvt. Ltd. (App. No. 132 of 1977 dt. 19-9-1978) and news published in newspaper to support his argument that irrespective of their normal function, any commodity could be called a "scientific equipment of instrument" if it is employed by an education institution for the purposes of observation, experiment or instruction in connection with training or practice of a science.

On the other hand revenue, contented that the term "Scientific Instrument" has to be taken in common sense and commercial manner. Revenue relied on the decision of Tribunal in the case of i) Varsha Steel Furniture (SA 87-88 of 1977 dt. 6-7-02, ii) Hindustan Timber Trading Co. (SA No. 615 of 1997 and iii) Bharat Steel Industries (SA No. 77 to 1079 of 1993 dt. 16-3-1996)

Not agreeing with appellants contention, Tribunal denied to accept the goods as scientific Instrument. Tribunal also denied the plea of the appellant that the buyer should be held liable for Purchase Tax u/s 41(2), because buyer has not contravened the recitals of Form AP.

The burden of proof is upon the appellant that impugned goods are covered by the term "Scientific Instruments".

(M/s. Sona Industries SA No. 786 of 1999 decided on 31-3-2006. The judgment was delivered by Shri R. B. Ahuja. Member, Third Bench Mr. Santosh Gupta Advocate appeared for the appellant)

1. Whether conversion of plain paper into cross rule paper amounts to manufacture u/s 2(17) of BST Act, 1959

Held : No.

2. Whether the 'cross ruled papers' is covered u/e. C-II-9

Held : Yes.

The Commissioner of Sales Tax filed a reference application disputing the judgment in Appeal No. 119 and 120 of 1996 decided by the First Bench of Tribunal.

In these appeals Tribunal accepted the appellants contention that "cross ruled paper" remains to be a "writing paper" covered u/e. C-II-9. It further held that "cross ruled paper" being commercially the same as writing paper, therefore activily of conversion of plain paper into cross ruled paper does not amount to manufacture.

The Commissioner had decided in an application u/s 52 that "cross ruled paper covered under C-II-102, and also held that appellants activity in the context amounts to "manufacture" as per section 2(17).

Tribunal rejected the reference application filed by revenue because

1. The entry relating to "Paper" is quite exhaustive and it include almost all types of papers. In these circumstances, it does not stand to reason to say that the "cross ruled paper" will not befall this entry but will be covered by residuary schedule entry and
    

2. Once it is held that the plain paper and cross ruled paper are the writing paper covered by Sch. Entry C-II-9 and that they are not commercially different the natural fallout is that the activily is not a manufacture.

(M/s. Navneet Publications (India) Ltd. Reference Application Nos. 6 & 7 of 2000 decided on 28-3-2006. The judgment was delivered by Shri G. G. Kochrekar, Member 3rd Bench Shri S. S. Gaitonde Advocate appeared for opponent).

1. Whether the benefit of tax exemption is available to "Industrial Canteen" under notification entry F5 and admissible to Private Contractors engaged by the Factory

Held : No.

2. No malafide intention in action of not paying any tax. Interest u/s. 36(3)(b) remitted 90% and penalty u/s. 36(2)(c) Expl. 1 deleted.

The appellant who was a private contractor runs a canteen in the office premises of ONGC. The canteen in question are run not as a statutory requirements of section 46 of Factories Act. Question was whether such private contractor was entitled to the tax exemption under the notification entry F5 u/s. 41. This question was referred to the Larger Bench

The Larger Bench held that "the Notification entry F 5 is clearly applicable to a canteen run in pursuance of the provisions of section 46 of the Factories Act.

Then appellant pleaded to remit the interest levied u/s. 36(3)(b) and penalty imposed u/s. 36(2)(c) Expl. 1, as there was no malafides on the part of appellant. Appellant had every reason to believe that he is legally entitled to the benefit under the Notification Entry F5. The Tribunal appreciated the fact that before the Larger Bench in preliminary objection, fact that office premises of ONGC is not covered by Factories Act and they were not under statutory obligation to run the canteen came on record. Tribunal allowed 90% remission in interest u/s. 36(3)(b) and deleted penalty imposed u/s 36(2)(c) because action of not paying any tax with returns was quite bonafide.

(M/s. Asha Caterers. SA No. 1524 of 2002 decided on 29-3-2006. The judgment was delivered by Shri G. G. Kochrekar, Member 3rd Bench. Shri V. P. Patkar, Advocate appeared for the appellant).