Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | Bihar Finance Act 1981 |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Allowed |
Headnote | Bihar Finance Act, 1981: s.13(1}(b) - Sales Tax - Gas .. producer supplying gas to steel manufacturer who showed oxygen in the list of goods taxable at 3% as specified in the Annexure 'B' appended to the Registration Certificate - By subsequent Notification, sales tax on sale of raw materials required directly for use in manufacture of goods fixed at 2% - Gas supplier started charging 2% sales tax on supplies of gas to steel manufacturer - Demand notice on gas supplier opining that steel manufacturer was liable to pay purchase tax at 3% on oxygen gas- Writ petition - Dismissed on ground that gas supplier had no locus standi to file writ petition as tax was payable by steel manufacturer - Held: Demand was made on gas supplier- He was person aggrieved and thus had locus standi to file writ petition - Question as to whether oxygen gas was raw material or not in the manufacture of steel is essentially a question of fact and cannot be decided in writ petition Demand is set aside- Question to be considered by Assessing Officer when raised by assessee - Bihar Sales Tax Rules, 1983 - r. 6. Mis Tata Iron & Steel Company Limited (TISCO) produced steel. For the said purpose, it purchased oxygen gas from M/s B.O.C. India Ltd. (BOC).TISCO was granted a registration certificate in terms of the provisions of Section 13(1)(b) of the Bihar Finance Act, 1981. The said certificate originally was granted on 16.3.1983 and was renewed from time to time. Oxygen was shown in the list of goods taxable at 3% as specified in Annexure 'B' appended to the registration certificate. From time to time several Notifications were issued in terms whereof varying rate of tax were prescribed in B respect of goods required directly for use in manufacture. By Notification dated 3.2.1986, sales tax on sale of the raw materials required directly for use in the manufacture of processing of goods for sale excluding such raw materials which had already undergone any manufacturing or production process and which are required for further assembly thehrewith shall be at the rate of 2%. TISCO never applied for amendment or modification of the Registration Certificate. Oxygen gas continued to be allowed to remain in Annexure 'B' of the Registration Certificate wherefor sales tax was payable at the rate of 3%. Till the Assessment Year 2002-2003, for supply of oxygen gas to TISCO, BOC charged sales tax at the rate of 3%. However, the said purported mistake was sought to be rectified by BOC in terms of the said Notification dated 3.2.1986 charging 2% sales tax on the supplies of oxygen gas made to TISCO. BOC also deposited tax at the rate of 2% on the sale of industrial gases to TISCO. Department issued a demand notice on BOC. Questioning " the validity of the notice, a writ petition was filed before the High Court which was dismissed on the ground that BOC had no locus standi to file writ petition as admittedly tax was payable by TISCO; that TISCO was authorized to purchase at the concessional rate of 3% and not at the rate of 2% and, thus, the demand was unassailable; that the selling dealer was bound by the certificate granted to it under Section 13(1 )(b) of the Act. It was also held that whether oxygen gas was a raw material or not cannot be decided/determined in writ petition filed by BOC as TISCO alone was competent to explain to the H prescribed authority as to how an item which had all along been treated and mentioned as goods as per Annexure A 'B', could be treated as raw material. BOC and TISCO filed these appeals. |
Judge | Hon'ble Mr. Justice S.B. Sinha |
Neutral Citation | 2009 INSC 322 |
Petitioner | M/s Boc India Ltd. |
Respondent | State Of Jharkhand & Ors. |
SCR | [2009] 4 S.C.R. 253 |
Judgement Date | 2009-03-05 |
Case Number | 1538 |
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