(Subject wise relevant Judgments of Tribunals, High Courts and Supreme Court are given)

Additional Tax

  1. Asco Chemical Company: (S.A. No. 114 of 1980, dated 14-6-1983): Tax element to be excluded for the purpose of ₹ 10 lakh turnover u/s.15A-1.

  2. Mohan Plastic Industries: (S.A. No. 634 of 1990, dated 31-10-1990) and Sandeep Mehta Craft: (S. A. No. 768 of 1993, dated 16-3-2002): O.M.S./High Seas purchases are to be excluded for the purpose of Additional Tax u/s.15A-1 from the limit of ₹ 10 lakhs turnover.

  3. Ishwarlal Shrikrishna Dave & Co.: (S.A. No. 389 of 1989, dated 28-2-1991): For the purpose of additional tax and turnover tax, the turnover of all the principals in the hands of the agent is to be considered.

  4. Bhagwandas Gopicharan & Co.: (S.A. No. 1943 of 1992, dated 5-8-1995): Agent's turnover could not be included in the turnover of the principal for determining liability of additional tax or turnover tax.

  5. Parle Products Ltd. (S.A. 34 of 1999 dated 30-9-2005): Additional Tax is leviable on net amount of Purchase Tax i.e. levy at specified rate less set off (remission) available as per proviso to section 14(1).

  6. Utron Indl.: (S. A. No. 148 of 94, dated 29-11- 2001) (Special Bench): Inter-State sale turnover has to be included for the purpose of computing the ceiling of T.O. for levy of Additional Tax.

Additional Ground

  1. Jute Corpn. of India vs. C.I.T.: ((1991) 187 ITR 688 (S.C.)): An appellant could raise additional ground during the course of hearing of appeal, although he had not agitated the issue at the time of assessment.

  2. Ranchhoddas Bhaichand vs. C.S.T.: (101 STC 218 (Bom.)): Additional grounds regarding assessment allowed to be raised in appeal after the expiry of limitation period, although appeal was against penalty.

Additional tax/surcharge

   1. New Metro Engineering Industries vs. State of Maharashtra: (132 STC 3 (Bom.)): Constitutionality of levy of surcharge u/s. 15-IA at 10% of the actual tax payable was upheld. If levy of tax under Notification entry issued u/s. 41 was partially exempted, surcharge would be attracted on the tax ultimately payable.

Agent

  1. Inter-State Commercial Corpn.: (S.A. No. 1501 of 1993, dated 8-11-1996): The contract of 'Agency' discussed in detail in relation to import of goods by indenting agents.

  2. Solar Trade Link Pvt. Ltd.: (S.A. Nos. 198 and 199/08 dated 16-09-2008): Recovery can be made from the principal situated outside the State if his agent in Maharashtra fails to pay the tax and no separate assessment of principal is necessary.

  3. Commissioner of Trade Tax, UP, Lucknow vs. Vijendra Engineering: (25 VST 600 (All.)): 90% payment received in advance from consignment agent does not mean good moved pursuant to prior contract of sale.

  4. State of Tamil Nadu vs. P. M. P. Iron and Steel India Ltd.: (28 VST 370 (Mad.)): Dealer producing F form with supporting documents. Fact that consignment agent selling the goods on the same day of arrival not sufficient by itself to treat the transaction as inter-State sale.

  5. State of Tripura vs. H.R.S. Agency (52 VST 350) (Guwahati): Receipt of full payment in advance is not a reason to disallow the stock transfers to agents when all other facts show that he is an agent and F form is issued.

  6. State of Tamil Nadu vs. Cocoa Products & Beverages Limited (109 STC 634)(Mad.): Agency need not be in writing.

Commission Agent

  1. State of West Bengal vs. O. P. Lodha: (105 STC 561 (S.C.)): Commission Agent selling goods on his own behalf and on behalf of his disclosed principals. Total turnover for the purpose of turnover tax includes sales made by agent on his own behalf as well as his principals.

  2. Metal Scrap Trade Corp. Ltd. vs. Dy. Commis-sioner of C.T., Vellore: (122 STC 439 (TNTST)): A commission agent is liable for additional tax irrespective of the turnover of his principals, if his turnover as agent of various principals exceeds the prescribed limits.

Amnesty Rejection

  1. M/s. Maharashtra Engineering: (Rest. Appln. No. 12 of 2005, dated 13-01- 2006): Restoration Allowed : Relying on the decision of the BHC given in the case of M/s. Rajendra Mechanical Industries Ltd. (W.P. No. 2150 of 2005 dated 9-9-2005): Tribunal restored the appeal to the file of Tribunal, when it was dismissed as withdrawn for Amnesty benefits.

  2. Navdeep Metal Co. (Rest. Appeal Nos. 47 & 48 of 2016 dated 31/03/2017): Appeal withdrawn for availing Settlement Scheme, 2016. On failure to make requisite payment Amnesty could not be availed. Restoration application filed. Tribunal restored the appeal.

Appeals

  1. Mehta Brothers: (S.A. No. 1521 of 1979, dated 3-2-1983): Claim not raised before S.T.O. or A.C. could be raised before the Tribunal, provided there was sufficient material on record to raise such a claim — 116 ITR 778 followed.

  2. Vallabhdas Bhagwandas: (S.A. Nos. 1698 & 99 of 1980, dated 2-3-1982): Appellate A.C. does not have the power u/s. 55(6)(b) in an appeal against penalty to remand the case. He can only enhance, reduce or set aside the penalty. Followed in the case of World Trade Impex Ltd. (S. A. No. 593 of 2000, dated 17-3-2001) and also followed in R. K. Sidhi Enterprises (VAT SA 147 of 2010 dt. 19.8.2010).

  3. Elight Printers: (S.A. No. 632 of 1985, dated 6-9-1987): The date of filing of appeal by post would be the date when it is posted and not the date when it is received by the Appellate Authority. Rule 58(3) of the B.S.T Rules, 1959 contemplates presentation of appeal by registered post, and hence, the Postal Authority would be an agent of the Appellate Authority.

  4. Girdhar Industrial Corporation: S. A. No. 663 of 1985, dated 7-10-1985

 a. Service of appeal order on S.T.P. is invalid within the meaning of Rule 68.

 b. The period of limitation does not start from the date of service of uncertified appeal order.

 c. In the absence of T.O.P., an Officer of different ward has no jurisdiction to assess the dealer.

  5. Sohal Engg. Works: (Misc. Appln. Nos. 10 to 12 of 1983, dated 30-8-1985) (Larger Bench): The provisions of Section 148 of the Civil Procedure Code are in terms applicable to the proceedings under the B.S.T. Act, 1959. In a case of self-operative order, the appeal would stand dismissed, if a particular payment were not made on or before a particular date. But the Tribunal would not become functus officio and can vary it later on.

  6. Creative Casual Wear Pvt. Ltd.: (S.A. No. 1379 of 1994, dated 19-9-1998): Appeal provisions of the B.S.T. Act are applicable under the C.S.T. Act. Hence, appeals under the C.S.T. Act maintainable.

  7. Consolidated Pneumatic Tools (I) Ltd.: (S.A. Nos. 303 and 304 of 1997, dated 20-4-1999): Additional/New ground before the Tribunal — Relying upon the B.H.C. judgment in the case of Ranchhoddas Bhaichand (101 STC 218), the Tribunal held that new/additional grounds not taken before lower authorities could be taken up before the Tribunal.

  8. Mahindra & Mahindra Financial Services Ltd.: (S.A. No. 442 of 2002 and Misc. Appln. No. 142 of 2003, dated 13-2-2004): The Tribunal held that it could not enhance/reduce tax in S. A. filed against penalty and interest, and also clarified that it could not entertain fresh ground relating to tax in the S. A. filed only against penalty/interest.

  9. D. B. Futnani & Sons: (S.A. No. 319 of 1980, dated 16-6-1980): Reminders should also give 10 days time u/r. 61(1)(b), unless waived in writing.

 10. Shri Gopal Ind.: (S.A. Nos. 419 & 420 of 1996, dated 16-2-2002): A ground which was withdrawn in the First Appeal, can be reagitated in the Second Appeal.

 11. Palesha Electronic: (S.A. No. 389 of 1998, dated 16-10-2004): When appeal was filed against reassessment order, the points arising out of original assessment order cannot be disturbed.

 12. B.E.S.&T. Undertaking: (App 53/76 dated 27-2-2004) In an appeal covered by section 55(6) (C), points agitated only can be dealt with — On reference by State, Bombay H.C. confirmed it — (140 STC 308).

 13. Schenectady Beck (I) Ltd.: (Apps 98 & 99/07 dated 06-11-2009) Appeal against Revision Order is Maintainable (Larger Bench).

 14. Ashoka Packaging: (S. A. Nos. 214 and 215 of 2011, dated 23-11-2011): The Tribunal held that the ground relating to time barred assessment can even be taken first time at the second appellate stage as the same goes to the root of the matter.

15. Pariwar Family Bar & Restaurant: (VAT Appeal No. 309 of 2012 dated 30-10-2012). Notice to Bank (garnishee notice) is appealable since it is order for payment although referred to as notice.

16. Industrial Oxygen Co. Ltd.: SA No. 1173 of 1993 and others, dated 30-10-2015: There being no provision restraining withdrawal of appeal by appellant, Tribunal allowed withdrawal in spite of Misc. App. was filed by the department and insistence was made for disposal of appeal on merits.

17. Dhanraj Wines, Misc. Appln. No. 219 of 2012 dated 12-11-2014 in SA Nos. 106 and 107 of 2011: Second Appeal was against interest and penalty and department filed Misc. App. for enhancement in tax. Tribunal rejected to entertain Misc. App.

18. Manas Hospitality Pvt. Ltd., VAT Second Appeal No. 288 of 2014 dated 27-08-2015: Appeal against interest under section 30(2) is maintainable for period till date of amendment i.e., up to 1-5-2010.

19. Roochir Contractors Pvt. Ltd. (VAT SA No. 75 of 2015 dt. 21-12-2014): Appeal against interest u/s.30(2) of MVAT Act for the period 2010-11 held maintainable. In case of Ajanta Enterprises (VAT SA No.76 of 2015 dt.7.12.2017), it is held non-maintainable.

20. State of Tamil Nadu vs. Arulkurugam & Co.: (51 STC 381)/State of A.P. vs. Hyderabad Asbestos Cement Ltd.: (94 STC 410 (S.C.): 'C' Forms allowed to be produced even after assessment stage.

21. Khandelwal Ferro Alloys Ltd. vs. the State (1991): (80 STC 42 (Bom.)): First Appeal Order merged with the Second Appeal Order, irrespective of the points argued by the parties and decided by the Appellate Authority and, hence, there was no scope for revision.

22. Bharat Industries: (98 STC 417 (Bom.)): Appeal memo filed without containing grounds of appeal does not cease to be an appeal in the eye of law. Such appeal cannot be dismissed summarily without giving reasonable opportunity of being heard. So far as Form 37 is concerned, obviously it is directory and not mandatory. The period of limitation applies only to the filing of appeal.

23. Girish Kumar, K. E. vs. Sales Tax Appellate Assistant Commissioner & Anr.: (122 STC 546 (Ker.)): K. Musthafa. vs. State of Kerala: (122 STC 565 (Ker)): The Appellate Authority must consider each objection independently. Simply mentioning "contentions raised does not merit any favourable consideration" will not be enough.

24. Shashi Mangla vs. Commissioner of Sales Tax: Delhi : (131 STC 283 (Delhi)): An appeal memo can be signed by a power of attorney holder.

25. ITC Ltd. vs. Person in Charge, Agricultural Market Committee, Kakinada & Ors.: (135 STC 258 (S.C.)): Non-filing of an appeal against an adverse decision in one matter is no bar against filing an appeal against another matter involving similar point.

26. ICICI Bank Ltd. and Another vs. State of Maharashtra and Others.: (26 VST 552 (Bom.) 2009): Order on application for stay should be a speaking order. Failure to give reasons will result in setting aside the order as a non-speaking order. The Legislature or its delegate cannot curtail judicial discretion as that would interfere with the independence of the judiciary which is a basic feature of our Constitution.

  Considering Rule 33 of the MVAT Rules, Form 312 for grant of stay at the most can only be a communication of the operative part of the order of the Tribunal.

27. Steel Authority of India Ltd. vs. STO, Rourkela (16 VST 181 (SC) 2008): Duty of Appellate Authority is to give reasons. Reason is the heartbeat of every conclusion. Reasons should at least be sufficient to indicate the application of mind. The affected party has to know why the decision has gone against him. Appeal before Assistant Commissioner or Assessment Order, appeal disposed of by passing a non-reasoned order. SC set aside against the order of AC and remanded the matter to him for fresh consideration and disposal by a reasoned order dealing with all the points of challenge raised against the AO.

28. Additional Commissioner of Sales Tax, VAT-I, Mumbai vs. Kirloskar Oil Engines (46 VST 538) (Bom): Doctrine of merger. Appeal made only against interest and penalty. Assessment order does not merge with the First Appeal order. Revision of appeal order on issues relating to assessment cannot be made.

Assessment

  1. Keshav Cement Works and Vandana Tiles: (S.A. No. 1068 of 1991, dated 14-10-1994): A.O. can be passed beyond stipulated period u/s. 33(5), provided action for assessment is initiated within that time.

  2. Everest Caterers: (S.A. No. 1761 of 1992, dated 31-3-1995): Exemption under Notification No. 191 issued u/s. 41 is allowable in full, although the period of assessment is less than 12 months. (Please see in the light of changes in the B.S.T. Act from 1-4-1994).

  3. Shri Laxmi Chana Bhandar: (S.A. No. 1648 of 1995, dated 30-1-1999): Assessment u/s. 33(5) — In addition to notice in Form 27, an opportunity of hearing, as contemplated in section 33(5), is required to be given before completion of assessment.

  4. Chandramauli Corporation: (S.A. No. 1609 of 1994, dated 30-9-1997): Due to shifting, year of assessment broken in two periods falling in different wards — S.T.O. while assessing for subsequent period (after shifting) considered turnover of previous period (before shifting) to determine limit of Additional Tax, etc. — Held, S.T.O. not to go beyond notice period of Form 27. (Reference has been allowed vide R.A. No. 79 of 1997, dated 2-8-2003).

  5.  Kiran Oil Mills: (S.A. No. 508 of 1995, dated 31-5-2003): URD- Notice in Form 27 issued in trade name is illegal. Assessment based on such notice is also illegal.

 See for different observations of Bombay High Court in case of Klip Nail Care (STR No.4 of 2009 and Others dated 15-3-2016).

  6. ACC Ltd.: (S.A. No. 421 of 2003 dated 25-1-2007) Barred by Limitation - All returns on record but some defective. Ad hoc payment is not return. 33(4A) applies.

  7. Varsa Udyog: (S.A. 384/385 of 2003 dated 16-10-2007) Ex parte order. Serving of ex parte proposal is a must.

  8. Bombay Stamping & Cutemeta Corp.: (S.A. 1518-20/2004 dt. 7-6-2007 LB) Section 33(4A) limitation applies only to dealers who have filed all returns.

  9. Pan Music & Magazines Ltd.: (S.A. No. 258 of 2006 dated 27-4-2006): Last return - Section 33(4A) (1999-2000) — All returns including annual return, were filed in time only March return was delayed but filed before date of Annual return. Ex parte order was challenged as passed after end of three years. Tribunal held though by amendment of 1-7-2004, returns, except annual return, are to be filed within 30 days, the same will not apply to period under appeal, and old Section 33(4A) will apply. Assessment order was set aside.

10. Devyani Trading Co. (Second App. Nos. 684 to 687 of 2010 dated 15-09-2012): Dealer gave affidavit that his transactions are hawala. Assessing authority assessed the same and levied tax. Tribunal confirmed the assessment.

11. Nursingh Vanijya Pvt. Ltd. vs. STO, New Market Charge: (34 VST 18(WBTT)): Overwriting on the date of assessment order and inordinate delay in despatch of postal cover of demand notice. Abnormal time given for payment. Inferred that A.O. backdated and barred by limitation.

12. Zenith Computers Ltd. vs. State of Maharashtra (38 VST 168 (Bom) 2011): Deputy Commissioner had no jurisdiction to impose penalty for the first time in exercise of appellate powers u/s. 36(2)(c) Expln. 2 of the BST Act, 1959.

13. Commissioner of Sales Tax, MS, Mumbai vs. Lucas India Service Ltd. & Agarwal Chemicals vs. Commissioner of Sales Tax, MS, Mumbai (50 VST 106)(Bom.): The time limit of 36 months for fresh assessment after remand as per section 36(4A) is applicable in all situations, irrespective whether returns are filed in time or not.

14. Schneider Electric India Pvt. Ltd. (VAT A. No. 1233 of 2015 dt. 30-09-2016): Held that under section 23(12) the fresh assessment should be within 18 months, otherwise it is time barred.

Attachment of a Cash Credit Bank Account

  1. M/s. Rajesh Trading Company : W.P. No. 9424 of 2012, dated 25-3-2013: The Department did not contest the point and withdrew the bank attachment on cash credit a/c.

Authorisation for Audit by CA/Cost Accountant

  1. Provision requiring audit and certification in certain case by chartered or cost accountant to the exclusion of Advocate & Sales Tax Practitioner is neither discriminatory nor arbitrary. (STPAM of Maharashtra (2008) 14 VST 69 (Bom.)).

Best Judgment Assessment

  1. Kamani Sons: (S.A. Nos. 946 to 948 of 1997 dated 12-1-2007): Enforcement — Appellant contended that he was broker and the amounts mentioned in diaries are about brokerage. Tribunal gave number of opportunities to Deptt. to produce the seized materials but Deptt. could not do it. Under above circumstances and also on facts Tribunal held that the assessments are bad in law.

  2. Branson Ultrasonics: (S.A. Nos. 421 and 422 of 2008, dt. 3-2-2012): Appellant could produce only books of account but no declarations for the year 2001-02 stating that declarations were lying on the ground floor office while books were lying on the 1st floor of the office. Declarations destroyed in floods.

  The Tribunal referring the Trade Circular on the subject and considering the FIR filed by the dealer directed to give the benefit of the Circular to the dealer.

  3. Hindustan Max GB Ltd. (SA Nos. 508 to 513 of 2013 dated 28.11.2014): Books not properly preserved, best judgment assessment done. Tribunal held that even in such case, the assessment should be based on results of prior years.

Burden

  1. Shrinath Sales Agency: (S.A. Nos. 502-503 of 1992, dated 30-7-2004): Filing of return under pressure of the Enforcement Branch does not prove taxability. That has to be proved by the Revenue.

  2. Pradeep Sales: S.A.166 of 2005 dated 30-9- 2006: If no delivery of goods but raising only accommodation bills, no liability under Sales Tax can be levied.

Business

  1. Prakash Stores: (S.A. No. 61 of 1993, dated 15-2-1997): Sale or purchase of motor car for personal use, although accounted in books, held not effected in the course of business.

  2. Zenith Global P. Ltd.: (S.A. Nos. 1026 to 1029 of 2001, dated 31-1-2002): Purchase of fixed assets and other purchases while engaged in consultancy business are outside the purview of 'Business' as defined in Section 2(5A) of the B.S.T. Act.

  3. Phonographic Performance Ltd.: (VAT App 9/2007 dated 19-6-2009): Granting licence for public performance of records, tapes or CD recorded by reproduction of recorded sound, was not business as definition under MVAT Act, 2002 nor was it is a case of lease.

  4. Morarji Bros. (Import & Export) Pvt. Ltd.: (99 STC 11 (Bom.)): Sale of car by the manufacturer of chemicals cannot be said to be effected in the course of business and not liable to tax. Retrospective amendments made in BST Act.

  5. Maharashtra State Electricity Board vs. State of Maharashtra: (109 STC 69 (Bom.)): Sale of tender forms, publications and waste paper by State Electricity Board not taxable, being non-sale transactions.

  6. State of Tamil Nadu & Another vs. Board of Trustees of the Port of Madras: (114 STC 520 (S.C.)): Port Trust cannot be held as carrying on business under main activity. Hence, incidental and ancillary transaction will also not be business.

Capital Asset

  1. Transelektra Domestic Products Ltd.: (Appln. No. 138 of 2000, dated 4-1-2003): Trade mark is also a capital asset although not reflected in the balance sheet - Sales thereof eligible for benefit of savings clause, Section 16(4) of Mah. Act 19 of 1996.

Condonation of delay

  1. Patel Plastic Corporation: (S. A. No. 593 of 1979, dated 4-7-1980): If a person bona fide preferred a legal remedy before a wrong forum and failed there, delay in filing appeal thus caused could be condoned.

  2. Roop Sringar: (Misc. Appln. No. 180 of 1998, dated 17-10-1998): Misc. Appln. for condonation of delay could be filed subsequent to the submission of the Second Appeal.

 3. Solar Distributors: (S. A. No. 1326 of 2005 dated 6-5-2006): Limitation - When starts — The Tribunal held that the authority of C.A. ended on completion of assessment. The service of order on C.A. is not legal in light of Rule 68. Therefore limitation to start from obtaining certified copy.

  4. Abelia Polymers: (Misc. App. No. 169 of 94 in S.A. No. 218 of 1999 dated 4-11-2006): Condonation of delay — Having failed to pay 5th instalment of deferred tax the appeal against original order was filed after 6 years. Tribunal, observing that since the order is nullity in eyes of law, held that delay is required to be condoned. Tribunal condoned delay and admitted appeal for hearing.

  5. Astha Works Pvt. Ltd.: (S. A. 1297 of 2005 dated 19-1-2007): Mistake on the part of Assistant of Consultant. Delay of 798 days condoned.

  6. V. P. Textiles: (Misc. App. No. 238 of 2011, dated 9-2-2011- S.A. No. 168 of 2011, dated 10-2-2012): Delay in filing on the Second Appeal was condoned on the ground of: a) time lost in approaching the wrong forum, b) the advocate of the appellant travelling abroad, and c) sickness of the Advocate after returning from abroad.

  7. Indo Agro Synergy Ltd. (Rest. Appln. No. 30 of 2010 in S. A. No. 1433 of 2004 dated 10-9-2012)- Limitation starts from date of communication of the order and not from the date of order itself. Abdul Aziz Ansari (9 STC 135) (Bom.) and Jayu Products (Restoration Appln. Nos. 32-35 of 2012 dated 1-9-2012) followed.

  8. Shree Engg. Works A.123 of 2004 & Misc. App. 140 of 2004 dated 8-12-2006: Delay of about 10 years condoned as the order appealed against was passed without granting hearing opportunity.

  9. Crystal Corporation (Misc. App. 421 of 2017 dated 24-01-2018: Delay due to financial crunch for making 10% compulsory payment for filing appeal. Tribunal condoned the delay.

10. Detection Instruments (I) P. Ltd. (Misc. App. No. 206 of 2018 dt.30.7.2018) : Delay due to lapse on part of accountant/consultant. Delay condoned.

Contravention

 1.  Puskaraj Rolling Mills: (Appeal No. 38 of 1987, dated 3-8-1989): No contravention of F-15 in the case of branch transfer in respect of furnace oil and consumable stores.

 2.  Steel Age Industries: Sales of fire extinguisher against Form 15 held as allowable as goods sold covered by C-II. Seller cannot be expected to ascertain the correctness of statement in Form 15.

 3.  Siemens Ltd. (SA No. 100 of 2015 dt. 28-5- 2017): No recovery of tax from seller in case of sale against forms notified u/s. 41 like A form.

Circular — Binding effect

 1. Commissioner of S.T., U.P. vs. Indra Industries: (122 STC 100 (S.C.)): Circular issued by the Commissioner of S.T. not binding on assessees or the Courts, but binding on Departmental authorities who cannot be heard to advance an argument that is contrary to the interpretation placed by the Commissioner in the Circular.

 2.  WIPRO Ltd. & Anr. vs. State of Maharashtra & Ors.: (135 STC 503 (Bom.)): A Circular issued by the Commissioner after the Bombay High Court judgment in the case of Berar Oil Industries cannot be unilaterally withdrawn with retrospective effect by another circular dated 1-2-2000.

 3.  Suchitra Components Ltd. vs. CCE: (20 VST 726)(SC): Beneficial circulars to be applied with retrospective effect and oppressive circulars to be effective prospectively.

 4.  State of Tamil Nadu vs. India Cements Ltd. (40 VST 225 (SC)): Circulars and instructions issued by the Board are no doubt binding in law on the authorities under the respective statutes, but when the SC or HC declares the law on the question arising for consideration, it would not be appropriate for the court to direct that the circular should be given effect to and not the view expressed in a decision of the SC or HC.

Classification

 1.  K. A. K. Anwar & Co. vs. State of Tamil Nadu: (108 STC 258 (S.C.)): Merely because different goods or commodities are listed together in the same sub-heading or sub-item, it cannot mean that they are regarded as one and the same — Dressed hides and skins are different from raw hides and skin u/s. 14 of the CST Act, 1956.

Condonation of Delay

 1.  Balkrishnan vs. M. Krishnamurthy: (7 SCC 123 (S.C.)): Held that for default of advocate, appellant should not suffer — Guidelines for condonation laid down.

 2.  Vedabai alias Vaijayantabai Baburao Patil vs. Shantaram Baburao Patil: (125 STC 375 (S.C.)): A delay of few days stands on a different footing from an inordinate delay.

 3.  Collector, Land Acquisition, Anantnag vs. M/s. Katiji: (66 STC 228 (S.C.)): Condonation - The expression 'sufficient cause' in section 5 is adequately elastic to enable the Courts to apply the law in a meaningful manner, which serves the ends of justice - that being the life purpose of the existence of the institution of Courts.

 4.  Shiv Construction Co.: (14 VST 408 (All) 2008): Illness of sole working partner is sufficient cause to condone delay in filing appeal.

 5.  Commissioner of Sales Tax, Maharashtra vs. N. H. Polymers (13 VST 73 (Bom) 2008): Specific sections 4 and 12 of the Limitation Act being only made applicable to Sections 55, 57 and 61 of the BST Act, 1959 the Tribunal and the High Court have no jurisdiction to condone the delay under proviso to section 61(1) except to the extent provided in those specific sections.

Under MVAT - Delay can be condoned

Additional Comm. of Sales Tax, VAT III, M. S. Mumbai vs. Kalyani Bakery, Phonographic Performance Ltd. (93 VST 387)(Bom).: In respect of appeal u/s. 27 of MVAT Act, it is held that High Court has power to condone the delay.

Constitutionality/Legislative Power

 1.  Western Electronics and Others vs. State of Maharashtra: (70 STC 57 (S.C.)): Imposing lesser rate of tax on local manufacturers and more on other manufacturers infringed Article 301 and Clause (1) of Article 303 and was not protected by Clause (a) of Article 304 of the Constitution of India, thereby restricting free movement of trade. Hence, held to be unconstitutional.

 2.  State of U.P. vs. Laxmi Paper Mart: (105 STC 1 (S.C.)): Notification to grant exemption to exercise books made from paper purchased within State, but not granting exemption to exercise books made from paper purchased from other States, is discriminatory and hit by Articles 301 and 304 of the Constitution.

 3.  Loharn Steel Industries Ltd. vs. State of A.P.: (105 STC 30 (S.C.)): Notification granting exemption, only to products manufactured within the State, violates the freedom of trade and commerce and is discriminatory in so far as it relates to not granting exemption to the goods manufactured outside the State and sold within the State.

 4.  Biological E-Ltd. vs. State of Karnataka: (104 STC 234 (Kar.)): Notification exempting turnover tax payable on medicinal and pharmaceutical preparations by dealers, other than manufacturers and their agents, discriminatory and notification quashed to the extent it excludes manufacturers or their agents.

 5.  Shree Mahavir Oil Mills vs. State of Jammu & Kashmir: (104 STC 148 (S.C.)): Exemption from tax on sales of edible oil manufactured within the State, by small-scale units, is discriminatory when all units in the State are small-scale units.

 6.  Shri Digvijay Cement Co. vs. State of Rajasthan: (106 STC 11 (S.C.)): Notification prescribing rate of tax on inter-State sale of cement lower than local rate in adjoining State. Declaration in Form 'C' was dispensed with — freedom of trade affected. Notifications were quashed. Overruled by Supreme Court vide 117 STC 395 (S.C.).

 7.  Calcutta Jute Mfg. Co. vs. C.T.O., W. B.: (106 STC 433 (S.C.)): Tax on annual aggregate gross turnover. Provision upheld. Interim injunction was issued for collection of tax. Dealer filed returns, but did not declare the taxable turnover in return. Interest was therefore payable by the dealer during which the collection was stayed.

 8.  Jiwankumar Sitaram Sondhi vs. Commissioner of S.T., Maharashtra.: (127 STC 234 (Bom.)): Section 8D of the BST Act is invalid and is liable to be struck down, as the Table in the Section has shifted the incidence of tax from sale to draw.

 9.  State of A.P. vs. NTPC Ltd. & Others: (127 STC 280 (S.C.)) (Constitution Bench): No State has power to pass a law having extra territorial operation. Entry 92A of List I (Union List) also applies to Entries 52, 53 and 54 of List II (State List), therefore, while levying tax on consumption of electricity under Entry 53 of that List, the State cannot provide for levy on sale of electricity sold to consumers of other State. Entries 53 and 54 have to be read harmoniously.

10. WIDIA (India) Ltd. vs. State of Karnataka: (132 STC 360 (S.C.)): There should be no discrimination between Imported goods and locally manufactured goods. That will amount to a fiscal barrier impeding the free flow of inter-State trade.

11. Commercial Tax Office & Others vs. Swastik Roadways & Anr.: (135 STC 1 (S.C.)): Power to levy tax on sale/purchase of goods include incidental power to prevent the evasion of such tax.

12. Godfrey Philips India Ltd.: (139 STC 537 (S.C.)): State has no power to levy luxury tax on sale of tobacco (goods) which is covered exclusively by Entry 54 in the State List. Aspect theory discussed at length and observed that Constitution entries were to be read widely so as to maintain exclusivity and avoid overlapping of State and Central Lists.

13. Raj Shipping vs. State of Maharashtra (Writ Petition No. 4057 of 2015 dt. 15-7-2015): Observations about taxability under MVAT Act when the goods are delivered in the coastal area. Nexus theory discussed.

14. Jindal Stainless Ltd. & Anr. vs. State of Haryana (Civil Appeal No. 3453/2002 & others dated 11-11-2016)(SC): Constitutional validity of levy of entry tax by States discussed.

Cotton Fabrics

 1.  State of Tamil Nadu vs. Modern Mills Stores: (102 STC 534 (S.C.)): Cotton belting and hair beltings are cotton fabrics.

C.S.T.

 1.  DCM Ltd.: (12 VST 248 (Delhi) 2008): Inter- State Sale: Sale by dealer of goods ex-factory to sole distributors who were by contract bound to sell such goods to specified territory outside sale is inter-State Sale.

 2.  Macwin Explosives & Accessories Pvt. Ltd.: (10 VST 726 (CSTAA) 2007): Jurisdiction of CAA: Central Appellate Authority being creature of statute cannot assume jurisdiction by implication or analogy. It cannot hear appeal against High Court Judgment.

 3.  Bhushan Power and Steel Ltd. (97 VST 69)P & H): Writ petition from Central Sales Tax Appellate Authority order lies to respective High Court.

Determination/Prospective effect

 1.  Kulko Engineering Works Ltd.: (46 STC 454 (Bom.)): Determination by the Commissioner u/s. 52 has binding effect on all the subordinate authorities.

 2.  Comm. of Sales Tax vs. M.S.T.T. & Ors. and Bharat Petroleum Corp. Ltd. vs. State of Maharashtra & Ors.: (137 STC 1 (Bom.)): The order u/s. 52 binds not only applicant and authorities but also other assessees with identical facts. As provided in Section 52(3), once a question is determined, similar one later on cannot be entertained. If the question determined is not appealed, the order becomes final.

D.D.Q./Prospective effect

 1.  Ashish Enterprises: (S.A. No. 85 of 1998, dated 24-2-1999): Application for prospective effect need not be with application for DDQ — It may be filed afterwards — Even after a lapse of period from the date of order determining the question — In this case, application filed after more than 5 years from determination order held entertainable.

  Above judgment is also followed in Kohinoor Tarpaulin Industries, VAT Appeal No. 737 of 2015 dated 07-09-2015.

 2.  Wimpy Electronics Pvt. Ltd.: (S.A. No. 54 of 1998, dated 24-2-1999): Previous determination order deciding particular rate of tax overruled subsequently, by separate order, while deciding matters in respect of other applicants (after hearing the appellant) — Held, the Commissioner had no power to overrule — Subsequent order set aside.

 3.  Modern Paper Converter: (DDQ 11/2000/Adm 5/59, dated 18-10-2000): Prospective effect given in a particular DDQ is applicable to all other cases, if facts/circumstances in such other cases are similar.

 4.  Shriram Precured Retreads Pvt. Ltd, S.A. No. 371 of 2014 dated 3-1-2015: In appeal against assessment order, prospective effect granted following prospective effect in other matter.

 5.  Bharat Springs Pvt. Ltd.: (Appeal No. 32 of 2001, dated 5-1-2002): DDQ could not be given with prospective effect if it affected the applicant adversely. Prospective effect was mean to be given only for protecting past liability.

 6.  Lalbaugcha Raja Sarwajanik Ganeshotsav Mandal vs. The State of Maharashtra (MVXA Tax Appeal No. 10 of 2015 dt. 28-7-2015) (BHC): Observations about nature of power of prospective effect and its use.

 7.  Reliance Industries Ltd. vs. State of Maharashtra (50 GSTR 1)(Bom): DDQ order and prospective effect discussed.

 8.  Venky's India Ltd.: (S.A. 140 4/1405 of 2000) and M/s. Auro Pharmaceuticals & Fine Chemicals P. Ltd. (A. 24 of 1996 dated 30-9-2005)

 9.  Glaxo Laboratories India Ltd.: (43 STC 386): Relied on. Poultry Feed concentrate/period 1992-93 to 1994-95 — Not covered by Entry C-I-14 but by Entry C-II-102. Tribunal granted prospective effect.

10. Shriram Precured Retreads Pvt. Ltd, S.A. No. 371 of 2014 dated 03-01-2015: Based on prospective effect in other case, Tribunal granted prospective effect in this appeal which was against assessment order.

11. Weikfield Product Co. (India) P. Ltd. (VAT App. Nos. 53 to 56 of 2011 dt. 4-5-2016): Finding that tax not collected, prospective effect granted.

Dealer

 1.  Ashvin & Co.: (Appeal No. 35 of 1994, dated 25-1-2002): An auctioneer rendering services of organising auctions not involving sale of goods on his part, could not be said to be a dealer within the meaning of Section 2(11) of the B.S.T. Act qua this activity. (Please refer amendment in Expl. to Section 2(11), w.e.f. 22-4-1988, vide Mah. Act, 2004.)

 2.  Ganeshji Pandit Memorial Trust: (Appeal No. 148 of 1999, dated 25-1-2001): A Charitable Trust selling sweet meats and farsan was not a dealer.

 3.  Pragati Rajasthan Mahila Mandal Griha Udyog: (Appeal No. 92 of 2002, dated 31-1-2004) : If the Charitable Trust, was carrying on independent activity of business, it was a dealer.

 4.  Seva Sadan Society: (Appeal No. 102 of 2002 dated 14-1-2005): A Charitable Trust, maintaining home for homeless women, where the main object was charitable, therefore, for incidental activity of cooking food and supplying it to canteens or through tiffin service for consideration, and sale of garments stitched by inmates, it cannot be held to be a dealer.

 5.  Uncle Chips Company Ltd.: (S.A. 2198 of 2003 dated 21-10-2005): ROMPA CHOMPA (1998-99)— Was claimed as potato wafers. Potato not mentioned as ingredients on the package. Held as taxable u/e. C-II-152.

 6.  Shree Mahila Gruh Udyog Lijjat Papad : (S.A.1108 of 1995 & Others dated 15-12-2006): Dealer-Section 22(5A)—Appellant a registered dealer under BST Act claimed that it is not a dealer qua its activities for manufacture and sale of papad and detergents. Appellant argued that it is not covered by the definition of dealer since the said definition does not include 'institution'. It was argued that the appellant is a Trust registered under Public Trusts Act and also registered under Societies Registration Act, 1860. That being a Trust it is a mutual agency and not a body of individuals or A.O.P. to be included in definition of dealer. The object clause, provided for raising standard of living of women beginning with papad making. Tribunal considered the meaning of charitable and found that the Trust is for raising standard of women, which is 'any other object of public utility' and held that the activities of the Trust are charitable in nature and not covered by 'business'. Therefore the trust is not a dealer. Tribunal though held that the appellant is not a dealer qua the activities in connection of Khadi & Village Ind., remanded the matter back to assessing authority for finding out application of Section 22(5A).

 7.  Great Eastern Shipping Company: (1523 of 2001 dated 31-1-2007): Shipping Division of Great Eastern Shipping Company is dealer under the main provision and not explanation.

 8.  Ircol International Ltd.: (Appeal 161 of 2004 dated 20-12-2007): The Appellant a GOI undertaking doing work as project consultant on deposit work basis held as not dealer but agent. Commission received not in respect to transfer of property.

 9.  Frasilian Technical Institute: (VAT App 20/2005 dated 29-1-2008): A Charitable Trust conducting vocational training courses, also running workshop/printing press on profit that was used for main object, was not a dealer under MVAT Act, 2002.

10. Lalbaugcha Raja Sarvajanik Ganeshotsav Mandal (VAT 178 of 2014 dated 26-11-2014): Under MVAT Act, Charitable Trust to be deemed dealer in spite of charitable objects, due to Explanation in section 2(8) of the MVAT Act, 2002. The above judgment is confirmed by Bombay High Court in MVXA Tax Appeal No. 10 of 2015 dated 28-7-2015.

11. Collector of Custom vs. State of W.B.: (113 STC 167 (S.C.)): Sale of confiscated goods under Customs Act and levy of tax thereon is not a tax directly on property belonging to Union of India, and therefore Article 285 has no application. Therefore, the Collector of Customs is a dealer for sale of such confiscated goods.

12. Commissioner of S.T. vs. Sai Publication Fund: (126 STC 288 (S.C.)): Trust selling books, etc. to spread the message of Sai Baba to devotees can't be held as carrying on business. Question of profit motive arises only if the person carries on an activity in the nature of business. 98 STC 388 (Bom.) affirmed.

  For position under MVAT refer to Lalbaugcha Raja Sarvajanik Ganeshotsav Mandal (VAT 178 of 2014 dated 26-11-2014).

13. State of Haryana vs. Govt. of India Photolitho Press: (126 STC 253 (P&H)): The press wholly owned by the Govt. of India, supplying stationery to its own Depts. without charging any commission or money. Held not dealer, as no commercial activity was carried on. Even sales of scrap not liable to tax as ancillary transactions, as they are not connected with any commercial activity.

14. Government of Andhra Pradesh & Another vs. Corporation Bank: (6 VST 755 (SC)): Bank selling gold pledged with it held by High Court not to be a dealer. Later amendment of statute deeming bank to be a "dealer" cannot be retrospective. Bank cannot be treated as dealer in relation to transaction completed before date of coming into force of amendment.

15. State Bank of Travancore, Indian Bank: (13 VST 562 (Ker.) 2008): Amendment to include in definition of 'dealer' a bank effecting sale in exercise of right as pledge held valid. Sale of pledged article is in course of banking business. What is pledge explained. There is no prohibition against banking company to buy sell or barter in bullion.

16. Saifee Hospital (SA No.190 of 2016 dt.8.12.2017): Hospital not dealer qua its in patient treatment activity. Also Aswini Hospital P. Ltd. (61 GSTR 492)(Ker)(Full Bench).

Declaration Forms

 1.  Industrial & Leather Mfg. Works: (S.A. No. 1309 of 1989 dated 31-7-1990): Even an unregistered dealer could issue Form No. 14-B for export of goods.

 2.  TISCO Ltd.: (S.A. No. 1172 of 1998 dated 18- 9-1999): In relation to declaration Forms under the Act, like 'BC' Form, held that in the absence of original Form, the certified copy (and not duplicate) is sufficient — This judgment is not applicable in relation to Form C.

 3.  Themis Chemicals: (S.A. Nos. 1528/29 of 1995 dated 19-9-1998): Duplicate counterfoil of Form C is sufficient for allowance of claim. (Rectification rejected vide Rect. Appln. Nos.2 and 3 of 1999, dated 30-4-2002). Also followed in Hindustan Copper Ltd. — S.A. Nos. 408/409 of 1996, dated 6-2-1999 against which Reference rejected vide Ref. Appln. No. 25/26 of 1999, dated 23-2-2001.

 4.  Kotak Mahindra Bank Ltd. VAT S. A. No. 271 of 2013 dated 23-4-2014: F forms issued for unregistered period after registration are valid.

C Form

 1.  DSM Anti Infective India Ltd. VAT S.A. No. 50 of 2013 dated 23-02-2015 : C Form - more than quarter - not permissible.

 2. KBM Extrusion Pvt. Ltd.: (VAT SA No. 323 of 2014 dated 15-2-2016) : C Form covering more than one transaction exceeding the prescribed limit is held invalid. Appeal is pending before Hon. Bombay High Court.

 3. OMIL-JSC-JV vs. Union of India and Others [2013] 61 VST 370 (Gau.) & Subash Chander Gupta & Sons vs. Union of India [2006] 144 STC 217 (J&K): In this case C form for transactions more than quarter not allowed.

 4.  Technova: (S.A. No. 272 of 1995, dated 7-2- 1997): The proprietary concern taking over from partnership firm can issue a 'C' form for the purchases made by the partnership firm by putting C. S. T. Nos. of both the partnership firm and the proprietary concern. Contrary view taken in Zackaria Karim & Bros., S.A. 494 of 1998, dated 29-3-2003.

 5.  Rahul Cable Corpn.: (S.A. No. 679 of 1995, dated 29-7-2000): If the buyer is not registered in transferee State, he can issue the C form though it may be from the State of the vendor, where it is registered.

 6.  Shri Nagani Silk Mills P. Ltd.: (S. A. No. 1607 of 2001 dated 8-1-2007): C.S.T. Act, Sale - Out and out sale goods purchased from RIL, Gujarat and directly delivered to customer also in Gujarat. Bills prepared from Maharashtra and were added in turnover of appellant in Maharashtra. Tribunal deleted the addition in local turnover and held the same as out and out sale.

 7.  Prakash Givindrao Nathe: (VAT Appeal 102 of 2010 dated 15-10-2010): Issue of C form cannot be withheld or refused for possible misuse which can be detected in the course of assessment. C forms have to be issued as and when requisitioned.

 8.  Vasantdada Sahakari Maka Prakriya Karkhana Ltd.: (S.A. No. 767 of 2010) and Galaxy Transmission Pvt. Ltd.: (S.A. No. 766 of 2010, dated 19-1-2011):

Following the Delhi High Court judgment given in the case of Sales Tax Bar Association & Others vs. The Commissioner of Sales Tax, Delhi (85 STC 251) the Tribunal ordered to issue 'C' Form for the period prior to 1-4-2008.

 9. Shree Satpuda Tapi Parisar Sahakari Sakhar Karkhana Ltd.: (S.A. No. 52 of 2010 dated 21- 9-2012)- Application for 'C' forms rejected on the ground of non-payment of dues for Sept. 2009 return. Upheld in view of Rule 4(i)(b) of the CST (Bombay) Rules mandating that Central repository shall carry out functions as per the directions of the Commr. The trade circulars under the said rule were considered.

10. Comm. Tax Officer vs. Rajasthan Elec. Board: (104 STC 89 (S.C.)): Electricity board, doing business of generation and distribution of electricity, can purchase motor vehicles, accessories, spare parts, tyres, tubes, soaps, parts, varnishes, raincoats and battery cells against 'C' form, and certificate of registration under the CST Act can be amended, to include the above items in it.

11. Quality Enterprises vs. Addl. Dy. C.T.O.: (127 STC 504 (Mad.)): For issuance of Form 'C', the only conditions that are to be satisfactory are that the persons claiming Form 'C' are registered dealers and charges for Form 'C' are paid. Whether the Forms 'C' are properly used or misused cannot be looked into at the stage of issuance of Forms and this aspect can be looked into at the time of assessment.

12. India Agencies (regd.) vs. Addl. Comm. of Commercial Taxes, Bangalore: (139 STC 329 (S.C.)): Production of original portion of 'C' Form is mandatory. Duplicate portion will not be sufficient.

13. Comm. of Sales Tax, Delhi vs. Shri Krishna Engg. Co. & Ors.: (139 STC 457 (S.C.)): Rule relating to non-supply of blank 'C' form to assessee in default for tax dues is valid.

14. Sri Rajeswari Agencies vs. Addl. Dy. Commercial Tax Officer: (40 VST 249 (Mad.)): 'C' form cannot be refused to be issued on ground of arrears of tax. Sec. 9(2) of the CST Act does not contemplate refusal of C Forms for non-payment of tax.

15. Indus Towers Ltd. vs. CTO and TVS Interconnect Systems Ltd. vs. ACTO (52 VST 447)(AP) - Purchase of goods against 'C' form for the activity as telecommunications network service provider is permissible. The facts that dealer did not possess licence from DoT and permitted others to use the goods does not amount to contravention.

'C' Form in appeal/'H' Form/'F' Forms

  1. R. R. Enterprise: (S.A. No. 1455 of 2002 dated 25-1-2007) : The assessing officer having VERIFIED and allowed claim as inter-State sale only 'C' form to be produced in appeal and no need to produce dispatch proof again.

  2. Samson Marine: (S.A. 779 of 1998 dated 16-11-2007): Outside Maharashtra Sale - On facts as the launch was given delivery in Gujarat, sale held as outside Maharashtra State.

  3. V. Radhavi: (S.A. No. 1526 of 1997 dated 30- 11-2007): 'F' Form - Reassessment - no material produced by department de hors the records, reassessment set aside.

  4. Akay Cosmetics P. Ltd. (Appl. No. 33 of 2008, S.A. No. 255 of 2009 & S.A. Nos. 610 of 2009 dated 30/05/2010) : 'F' form exceeding one month. Out of several months mentioned in the form benefit of one month to be allowed, which is beneficial to the appellant.

  5. Continental Agencies: (S.A. Nos. 1687 & 1688 of 2001 dated 21-9-2007): Inter-State sale delivery to buyer in Bhiwandi who carried the goods to other State. Confirmation with 'C' Form submitted. Movement held consequent to the sale sufficient to prove CST claim.

  6. Kalwa Chemicals: (S.A. No. 1341/05 dated 12-3-2007): 'C' Form follow up through representatives, E-mail and phone calls. Evidence could not be produced due to lapse of time. 'C' form allowed.

  7. Shreenath Refractures & Allied: (S.A. 1369/06 dated 17-3-2007): For 6(2) sales, on facts held no endorsement necessary as sale to local party has occasioned the inter-State sale from Gujarat.

 8. Safe Print and Pack: (S.A. 84/2001 dated 9-3- 2007): Packing materials like stickers and labels supplied on 'H' Form. Claim allowed as sale in course of exports.

 9. Multi Films Plastics Ltd.: (2106/01 dated 22-6- 2007): Bill dated 31st March but delivery in April. Based on revision to Rule 12(1). 'C' Form based on delivery allowed.

CST dispute involving two States

  1. GWS Fabricators Pvt. Ltd.: (VAT Appeal Nos. 12 to 15 of 2010, dated 9-9-2010): In view of the amended section 18A of the CST Act from 11-6-2010 the direct appeal can lie before the Tribunal.

GWS Fabrication P. Ltd. (VAT Appeal Nos. 14 and 15 of 2010 dated 30-01-2013): The provision of section 26(6) about three adjournments and part payment quantum is not applicable to appeal filed under section 18A of the CST Act.

  2. Sahney Kirkwood Pvt. Ltd. (S.A. Nos. 977 and 978 of 2003 dated 28-9-2007): Sale of Capital assets not liable to tax under CST Act.

Deductions

  1. Mohan Rocky Spring Water Breweries: (S.A. Nos. 404 to 406 of 1983, dated 21-11-1984):

Deduction u/r. 46A is permissible in case of transaction claimed not taxable by assessee but taxed by the authority. (Not applicable after the amendment in Rule 46A.)

  2. Amardeo Plastic Ind.: (S.A. Nos. 826 & 827 of 1999, dated 10-11-2000): Held, unless intention to collect tax existed, no deduction u/r. 46A allowable.

  3. Ramgopal Textiles Pvt. Ltd.: (S.A. No. 21 of 1984 dated 13-7-1984): Discount allowed to the customers does not form part of sale price. Hence, deduction should be allowed.

  4. Bombay Water Proof: (S.A. No. 460 of 1994, dated 11-10-1996): Sale on F 15 of C-I goods allowed although F-15 issued wrongly.

  5. Fibros Corporation: (S.A. Nos. 446 and 447 of 1994, dated 5-10-1996): Sale against F-15 of Sch. B goods was allowed on the facts of the case.

  6. Visveswarya Iron & Steel Ltd.: (S.A. No. 1 of 1995 dated 5-1-2002): Trade discount on the ground of goods being defective admissible as deduction from sale price.

  7. Refractory Shapes Pvt. Ltd. (App. No. 54 of 2013 dated 16-2-2016): Sale against BC Form allowable, irrespective of treatment by buyer following Add. Comm. of Sales Tax vs. Dancal India Pvt. Ltd. (74 VST 556)(Bom.).

  8. Goodday Ventures (India) Pvt. Ltd. VAT S.A. 52 &53 of 2012 dated 27-08-2012: Under MVAT Rule 57(1), there is no condition of reimbursement of tax for allowing deduction of tax element, where it is not collected separately. Even if sales were claimed exempt, but held taxable in assessment, then deduction under Rule 57(1) to be allowed.

Declared goods

  1. Dewan Enterprises vs. C.S.T., U.P.: (102 STC 67 (S.C.)): Wheels, tyres, axles and wheel sets of cycle rim are declared goods.

  2. Ganpatlal Lakhotia vs. State of Rajasthan: (104 STC 91 (S.C.)): Coconut includes watery coconuts and is declared goods.

  3. Usha Martin Ind. Ltd. vs. State of Bihar: (104 STC 531 (Pat)): Iron and steel wire and wire rods are single taxable commodity.

  4. Rajasthan Flour Mills Assn. vs. State of Rajasthan: (91 STC 408 (S.C.)): Wheat atta and maida are not declared goods.

  5. Indian Sugar & General Industry Export Import Corp. Ltd.: (127 STC 339 (Mad.)): Such sugar as is covered by sub-headings in excise tariff is declared goods, even if the same is imported and not manufactured in India.

  6. Bansal Wire Industries Ltd. vs. State of U.P. (42 VST 372)(SC): Stainless steel wire held as not declared goods.

  7. Zamil Steel Buildings India Pvt. Ltd. vs. The State of Maharashtra (98 VST 172)(Bom) : Steel structural held as declared goods.

  8. Berar Metal Processing (P) Ltd. (SA. No. 583- 584 of 2006 dated 6-5-2015): Held electrodes are declared goods.

Disallowance of Set-off

 1. Hallmark Metallica vs. The State of Maharashtra (VAT Appeal No. 166 of 2013 dated 11-11-2013): In case of assessment u/s. 23(5) to disallow set-off, the refund if any under MVAT Act (before adjustment of CST) in Audit Report is required to be considered for fixing part payment.

 2. Galary 7 (VAT Second App. No. 120 of 2011 dated 17-12-2012): Set-off disallowed on ground of hawala and mismatch. Tribunal remanded matter back to verify the payment position by vendors.

 3. Shri Swami Samarth Shetkari vs. Vinkar Sahakari Soot Girini Ltd., VAT Appeal No. 271 of 2015 dated 9-9-2015: Set off was disallowed based on information collected. However, no opportunity to explain was given to the appellant. Matter remanded for giving opportunity.

Entitlement Certificate/Incentive Schemes

 1. Aurangabad Electricals Pvt. Ltd.: (S.A. No. 2263 of 1998, dated 7-8-1999): Entitlement Certificate — Exempted Sales — E.C. holder informed C.S.T. that he will enjoy benefit on purchase side and not on sale side — C.S.T. giving conditional administrative consent — Lower authority not following the same — Tribunal directed to follow the same — Held that E.C. holder could enjoy benefit on purchases without availing on sales.

In case of Hindustan Coca Cola Beverages (Pvt.) Ltd. & Ors. (S. A. 703 & 704 of 2005 dated 18-01-2013) the above judgment is distinguished and contrary judgment is given.

  2. Maharashtra Soya Industries Ltd.: (S.A. No. 91 of 1997, dated 18-9-1999): Commercial production started from 23-10-1996 — E.C. granted from 1-7-1997 — Amongst others, shown that all steps taken in reasonable time. Considering facts, E.C. made effective retrospectively from 23-10-1996.

  3. Gala Equipments Ltd. & Others: (Appeal Nos. 103 and 104 of 1999, dated 10-8-2001): Entitlement Certificate can be issued only after completion of final effective steps, but can be issued with retrospective effect from the date of commencement of commercial production at the request of the unit.

 4.  Walpat Industries: (App. No. 106 of 2001, dated 21-12-2002): Entitlement Certificate under the Wind Power Scheme is valid for a continuous period of 6 years from the year in which Entitlement Certificate is obtained, subject to fulfilment of conditions from time-to-time.

 5.  Jaysons Ammonia: (App. No. 124 of 2000, dated 26-7-2002 (Larger Bench): Held that it was not mandatory for the DC to issue E.C. merely on the basis of the Eligibility Certificate issued by the implementing agency without verifying whether the appellant was engaged in manufacturing activity or not.

 6.  Vasantdada Shetkari Sahakari Sakhar Karkhana Ltd.: (App. No. 141 of 2002, dated 29-8-2003): Entitlement Certificate was required to be granted from the date of application and not from the date of commencement of commercial production in a 'pipeline' case (Application pending on 23-3-2000, the date on which Clause 3.1 of the 1993 Package Scheme was substituted), if the application for incentives was made after the date of commencement of commercial production. Refer para 13 of Tiger Steel Engg. 123 STC 13 (Bom.)

 7.  Kalyani Forge Ltd.: (S.A. No. 128 of 2003, dated 5-9-2003): B.S.T. refund could not be adjusted against C.S.T. dues for the purposes of calculating the amount of tax deferrable under the C.S.T. Act. The B.S.T. and C.S.T. Acts were two separate enactments.

 8. Pee Vee Textiles: (S.A. No. 48 of 2000 dated 17-3-2001): The issuing authority could not put a condition in the E.C. for availing of pro rata benefit of incentives (out of total production) towards expansion. Confirmed till Supreme Court. Refer Cir. No. 20T of 2010 dated 30-6-2010.

 9. Finolex Cables Ltd.: (Appl. No. 64 of 2001, dated 23-8-2002): As per 1993 PSI, it was mandatory to grant 5 equal annual instalments for repayment of taxes deferred.

10. Sangamner S.S.K. Ltd.: (S.A. No. 884 of 2003, dated 29-9-2004): Under Rule 31B, the amount of deferral cannot be adjusted against set-off available to non-deferral unit.

11. Ram Electricals: (Appl. No. 12 of 1997, dated 8-10-2004): Set-off under Rule 42AC will be available for goods manufactured during eligibility period but was in stock on the last day of that period.

12. Shubham Plastics: (S.A. No. 78 of 1998, dated 30-4-2005 (Larger Bench): Set off u/r. 42AC is to be counted as an incentive availed for the purpose of ceiling.

13. Shri Parshwnath Petrochem Pvt. Ltd.: (S.A. Nos. 868 to 872 of 2006 dated 12-1-2007): For 1998, 1993 & 1998 scheme for inter-State sale CQB will be 4% against 'C' form.

14. J. D. Orogochem Ltd.: (S.A. No. 656 of 2005 dated 17-12-2007): Adjustment of set off on capital goods before deferment need not be done for the periods 1997-98 to 2002-03.

15. Dynamix Dairy Ind. Ltd.: (S.A. No. 1751 of 2004 dated 30-3-2007): Skimmed milk to milk not manufacturing activity yet appellant held as entitled to benefit of E.C. under 1993 scheme on various grounds allowed. Confirmed by BHC in Sales Tax Reference No. 67 of 2009 dated 13-6-2017.

Not followed in Dynamix Dairy Industries (Second Appeal Nos. 646 to 649 of 2009 decided on 20-12-2014). Reference pending.

16. Rigidor Plastic: (S.A. Nos. 753 &754/1994 dated 14-12-2009, Larger Bench): Purchase Tax u/s. 41(2) cannot be levied where raw material purchased on BC Form was used in the manufacture after the expiry of eligibility period.

17. Madhur Agro Proteins Ltd. (S.A. No. 1084 of 2004 dated 8-10-2012)- CQB not to be calculated on the purchases eligible for set off u/r. 41F regardless of the fact that set off is not available to the extent of manufacture of de-oiled cakes which is tax-free product. Dessan Agro Tech followed (S.A. Nos. 1051 of 2004, 1681 and 1682 of 2004 dated 8-12-2006).

18. J. K. Udaipur Udyog Ltd. vs. State of Rajasthan and Ors.: (131 STC 80 and 131 STC 176 (Raj.)): Corrigendum when issued will relate back to the date of issuing the original notification, but such a power cannot be utilised for amending the original.

19. RIS Electronic India Pvt. Ltd. & Ors. vs. State of Bihar & Ors.: (132 STC 185 (Pat.)): Without issue of fresh Notification modifying or rescinding, the earlier one granting exemption would continue to be valid.

20. State of Punjab vs. Nestle India Ltd. & Anr.: (136 STC 35 (S.C.)): The Doctrine of Promissory Estoppel can be relied upon as a cause of action against Government, even when the representation sought to be enforced was invalid i.e., it was made in a manner which was not in conformity with the procedure prescribed by the statute.

21. Prism Cement Ltd. vs State of Maharashtra (54 VST 104)(Bom): Authority under section 8(5) of CST to exempt from 'C' form requirement continues even after amendment in section 8(5) from 11-5-2002.

22. State of Gujarat v. Khadi Gramodyog Sangh (58 GSTR 364) : No retrospective cancellation of Entitlement certificate.

23. Mahindra & Mahindra Ltd. (59 GSTR 91) (Bom): In view of retrospective amendment in section 93 etc. of MVAT Act, formula of pro rata will apply irrespective of exhaustion of monetary limit prior to amendment.

24. Finolex Industries Ltd. (MVAT No.61 of 2017 dt.19.4.2018): Considering position of monetary ceiling in this case formula not applied inspite of retrospective amendment in section 93 etc. of MVAT Act.

Entries

 1. Trinity Engineers Ltd.: (S.A. Nos. 169 to 173 of 1999, dated 31-10-2003): Semi finished Forgings covered by B-6(viii).

 2. N. H. Polymers: (Appeal No. 38 of 1998 dated 31-8-2002.) Resin-based adhesive sold in trade name Furnicol S.H. was Chemical under Entry 21 of Sch.C.

Note: Reference by State was rejected — Ref. 122 of 2002, decided on 15-6-2005.

 3. Viplav Trader Ltd.: (S.A. No. 2300 of 2003 dated 20-10-2006): Atomised Gold Powder held as bullion being within the dictionary and trade meaning. Tribunal directed to tax the same u/e. C-I-10 taxable @2%.

 4. Anibh Medicare P. Ltd.: (S.A. No. 90 of 2001 dated 29-1-2007): HIV Kits - Period after 6-2- 1999: - In DDQ the HIV testing kit was held as not covered by Entry C-II-37. Tribunal held that the words used are not "on human body" but "human beings". Taking blood sample from human body and testing in laboratory with the kit amounts to diagnosis on human being and held that the kits are still covered by Entry C-II-37.

 5. Inox Air Products Ltd.: (S.A No. 30 of 2006 dated 10-11-2006): Nitros Oxide gas - MVAT Act, 2002-vide DDQ dated 27-3-2006 the item was held as covered by Entry EI. Item is required in operation treatment and it is to be treated as drugs. Tribunal held the item as covered by Entry C-29.

 6. Sunil Industries: (S.A. No. 1098 of 2005 dated 25-1-2007): Hessian Bags are Jute bags - 'Gunpat'

 7. Indian Gypsum Ltd.: (VAT Appeal Nos. 5 &11 of 2007 dated 30-10-2007): Gypsum Board C-41 of MVAT Act covers Gypsum of all description therefore Gypsum Board covered by C-41.

 8. Himani Ltd.: (S.A. No. 63 of 2004 dated 29-9- 2007): Himani Navratan Oil sold vide Bill dated 17-3-2001 held as covered by C-II-34 & not C-II- 37 as Ayurvedic Drug but covered by exclusion clause.

 9. Krupa Aushadhalay (S.A. 98 of 2006 dated 31-1-2007): Krupa Hair Tonic held as medicine covered by Entry C-II-37. Confirmed by Bombay High Court in STA No. 21 of 2015 dated 1-12-2015.

10. Meera Metal Industries: (S.A. No. 118/119 of 1999 dated 16-1-2007) Anodised Tava & Kadai held as covered by C-II-46 (B) up to 1-10-1995 and thereafter by C-II-26 as heat resistant cookware.

11. Bennett, Coleman & Co.: (S.A. Nos. 64 to 66 of 2006 dated 25-1-2007): Femina & Filmfare are books covered by A-3(2) even though some space is utilised for advertisement.

12. Warner Lambard India Pvt. Ltd.: (S.A. No. 1204 of 2003 dated 22-10-2007): 'Halls' held as covered by C-II-37. Report of Ayurved Mahavidayala and various other certificates accepted.

13. Johnson & Johnson Ltd.: (S.A. No. 181/2000 dated 30-11-2007): Prickly Heat Powder - Shower to Shower held as covered by C-II-37 despite exclusion.

14. Shetra Times Pvt. Ltd.: (S.A. Nos. 46 to 49 of 2005 dated 4-9-2007): Electronic Alarm Clock held as covered by C-II-137 and not C-II-126.

15. Dishti Industries Ltd.: (S.A. Nos. 344 to 347 of 2007 dated 23-11-2007): Bolting Cloth held as covered by A-15.

16. Weikfield Agroproducts Ltd.: (S.A. No. 994 of 2004 dated 21-11-2007): Mushrooms - sold in plastic bags packed with prop plastic tubes and having holes covered by A-19(1).

17. Sound Craft: (S.A. No. 86/96 dated 13-4-2007): Microphone held as electronic transducer.

18. Narang Motels Ltd.: (S.A. 635/89 and Misc 56/92 dated 27-4-2007): Sale by flight kitchen covered by C-II27.

19. Hindustan Organic Chemicals: (S.A. 7/2000 dated 24-5-2007): Spent Suluric Acid same as Sulphuric Acid.

20. Proctor & Gamble: (S.A. No. 107-4/96 dated 29-6-2007): Clearsil held as cosmetics.

21. Ceejay Healthcare Pvt. Ltd.: (S.A. No. 109/04 dated 27-6-2008): "Nulife Chewettes" is a drug/medicine u/e. C-II-37 used for curbing smoking habit.

22. Lord India Chemical Products Pvt. Ltd.: (S.A. Nos. 1130 & 1131 of 2005 dated 14-9-2012)- "Chemolok" which is a colourless adhesive used for bonding unvulcanised silicon rubber to metals, glass, plastics & textiles is held as chemical u/e C-II-83 up to 12-9-2000.

23. Sunrise Structural & Engg. Pvt. Ltd. (SA 150 of 2002 dated 31-8-2012): Steel Structurals/parts of transmission tower held as covered by Entry B6(v).

24. Zamil Steel Buildings (P) Ltd (VAT App. No. 403 of 2013 dated 7-12-2015): Articles of steel for constructing pre-fabricating building, held as covered by Entry E-1.

25. Marico Ltd. (VAT Appeal No. 92 of 2011, dated 14-10-2015): - Item "Safola Oat" held as covered by Sch. Entry E-1.

26. Sterlite Optical Technologies: (14 VST 9 (Gau.) 2008): Sound transmitting equipment does not cover optical fibre cables and accessories. Meaning of word including explained always expands the meaning of term sought to be defined.

27. Bansal Wire Industries Ltd. and Another vs. State of U. P. and Others (2011) 42 VST 372(SC): Stainless steel wire not covered under Entry "tool, alloy and special steels" in Entry (ix) of section 14 of the CST Act and hence, not declared goods.

28. C.S.T. Mumbai vs. India Gypsum Ltd.: (25 VST 210 (Bom.)): Entry dealing with 'Gypsum of all forms and descriptions' included gypsum board.

29. Pepsico India Holdings (Pvt.) Ltd. vs. CCT Tamil Nadu: (25 VST 632 (Mad)): Potato chips sold under brand name 'Lays' and 'Uncle Chips' not classifiable as processed vegetable and covered by residuary entry.

30. Pepsico India Holdings (Pvt.) Ltd. vs. State of Assam: (25 VST 41 (Guwahati)): Potato chips classifiable as processed vegetables.

31. CCT, Bihar vs. Associated Dyes and Stuff Corporation: (26 VST 503 (Patna)): Maize starch and maize powder are different commodities. Maize starch is not 'cereal' even if used as food item.

32. State of Haryana vs. Swiss French Laboratories: (29 VST 254 (P&H)): Sugar globules used in homeopathic medicine covered by entry 'sugar including khandsari and boora'.

33. Gopalan and Rasayan vs. State of Maharashtra: (30 VST 304 (Bom.)): Steam is not chemical and covered by residuary entry.

34. CST, Mumbai vs. M.I.R.C. Electronic Ltd.: (31 VST 452 (Bom.)): Electronic washing machines are electronic appliances and not covered by 'domestic electrical appliances such as washing machines etc.'

35. In Bloom vs. CST, Mumbai: (34 VST 9 (Bom.)): Bouquet of fresh flowers are natural flowers and preparing the same is not manufacture.

36. Commissioner of Sales Tax vs. India Gypsum Ltd. (25 VST 210 (Bom) 2009): The classification in the Customs Tariff Act is irrelevant for the purpose of considering the entry in the MVAT Act, 2002. What has to be considered is the entry in the Schedule.

37. Cadbury India Ltd. vs. Assistant Commissioner (CT), Fast Track Assessment Circle IV, Chennai. (51 VST 130)(MAD)-"Halls" Mentholyptus is ayurvedic medicine and not confectionery just because sugar is added and doctor's prescription is not needed.

38. Samruddhi Industries Ltd. (STR No. 20 of 2006 dated 23-12-2014)(BHC): The item "ghamela" held as covered by Entry C-I-29. The principles about interpretation vis-à-vis notification discussed.

Entry Tax

 1. Following the directions of High Court in Writ Petition the matter was directed to be decided on merit without part payment under Entry Tax Act. (Western Coalfield Ltd. 1393 to 1395 of 1999 dated 26-10-2007).

 2. Smt. Anuja Dilip Chhajed: (S. A. 1294/2005 11-1-2011): No Entry Tax was payable when bus body was mounted on the chassis brought in from other State since that was neither used nor sold.

 3. Omkar Construction (VAT S.A. 60 of 2012 dated 21-8-2012): Excavator held to be taxable vehicle under Entry tax.

 4. Eurotex Inds. & Exports Ltd. & Anr. vs. State of Maharashtra: (135 STC 25 (Bom.)): Entry Tax fixed at rate higher than the effective rate of sales tax provided under the BST Act held arbitrary, discriminatory and impeding free flow of trade. Hence, held as unconstitutional.

 5. Reliance Trading Company vs. State of Kerala: (and other appeals) (147 STC 211 (SC)): Under the Additional Duties of Excise (Goods of Special Importance) Act, 1957, additional duty is leviable on cotton based tarpaulin under the First Schedule to that Act. Having regard to the objective behind enacting that Act, it is apparent that cotton based tarpaulin, on which additional duty is levied under that Act, was and continues to be exempt from sales tax.

 6. Jindal Stainless Ltd. vs. State of Haryana (Civil Appeal No. 3453/2002 dated 11-11-2016) (SC): Constitutional Validity of Entry Tax Act on goods discussed.

Evidence

 1. C.S.T. of U.P. Lucknow vs. Sureshchand Jain: (70 STC 45 (S.C.)): A sale can be said to be in the course of inter-State trade only if two conditions occur viz. (i) a sale of goods and (ii) a transport of these goods from one State to another. The onus is on the Revenue to disprove the dealers' contention.

Exempted sales — Industrial Canteens

 1. Industrial Catering Services P. Ltd. vs. C.T.O., Chennai: (132 STC 35 (Mad.)): Exemption from payment of tax is granted to canteens run by employers on 'No profit no loss' basis and not to contractors appointed by employers to run the canteen.

Exim Scrips

 1. Shrenuj & Co. Ltd.: (S.A. Nos. 1220 of 1999, dated 29-11-2001): Premium received on surrender of Exim scrips to DGFT would be liable to tax, only if the scheme of Exim scrips envisaged sale/purchase of Exim scrips.

 2. Agra Engineering Co. Ltd.: (S.A. No. 185 of 1997, dated 30-4-2002): Consideration received on account of surrender of Exim scrips to the grantor when it was no longer marketable after 1-3-1992, was not liable to tax net confirmed by Supreme Court judgment in case of Commercial Tax Officer vs. State Bank of India (97 VST 1) (SC).

Ex parte order

 1. Virendra Lac Works: (S. A. Nos. 616 to 619 of 1988, dated 28-7-1989): The ex parte order was set aside by the Tribunal with a direction to the S.T.O. to issue summons to Excise Authority in whose custody the books were lying, for production of books of account and to pass fresh order thereafter.

 2. Mahalaxmi Glass Works (A. No. 76 of 2006 dated 12-7-2010): Purchase order copy of foreign buyer vis-à-vis circular of Commissioner of Sales Tax bearing No. 18A of 2009 dated 18-8-2009.

Export

 1. Bachil Steel P. Ltd.: (S.A. No. 100 of 2002 dated 27-10-2005): Export u/s. 5(3)-GI Form/B/L — sale of drums against Form GI was disallowed on the ground that many important columns in the B/L are erased. Tribunal gave opportunity to get them completed and on satisfaction of complete B/L, allowed the claim fully.

Form F

 1. Shobha Asar: VAT App. No. 155 of 2012, dated 25-7-2013 : Appellant took goods 'on person' to other States and sold the same in exhibition. Local tax paid on such sales. Assessing Authority in 2005-06 levied tax under the CST Act in absence of 'F' Forms.

In Second Appeal the Tribunal referred to definition of Place of Business in Section 2(dd) and observed that exhibition is not place of business of appellant. Tribunal, therefore, held that section 6A is not applicable to appellant and allowed the claim. Confirmed by Bombay High Court in Sales Tax Appeal No. 1 of 2014 dated 8-7-2014.

Forfeiture

 1. Uncle Chips & Co. Ltd.: (App. No. 103 of 2000, dated 11-1-2002): When sales price was not varied in consonance with changes in tax structure, no reimbursement of tax can be inferred.

 2. Mahatma Mungsaji Adivasi Jungle Kamgar Sahakari Sanstha Ltd. S.A. Nos. 723, 724 & 725 of 2003 dated 07-01-2013: Tax collected as URD. However, since it was paid in the Government Treasury, held that forfeiture not applicable.

 3. Unique Automobiles & Ors.: (S.A. No. 1961 of 2003, dated 18-6-2005) (Larger Bench) When deduction u/r. 46A has been claimed, there is a presumption that tax has been collected at that rate but the presumption can be rebutted by the dealer by production of evidence.

 4. Technova Imaging Systems Ltd. (S.A. No. 569 of 2005 dated 6-7-2015): Excess collection paid into Government Treasury should be refunded back to dealer for refunding to respective buyers and only non-refunded amount can be forfeited.

 5. Ramkrishna Kulwantrai vs. Commissioner of Sales Tax: (44 STC 117 (Bom.)) - (Confirmed in 117 STC 544 (S.C.)): Taxes collected on transactions which do not amount to sale cannot be forfeited u/s. 46(2) of B.S.T. Act, 1959.

 6. Niranjan Mills Ltd. vs. State of Maharashtra: (99 STC 587 (Bom.)): When an unregistered dealer liable to pay tax had collected tax and paid it in the Govt. Treasury and was assessed, no penalty u/s.37 can be imposed. Both levy of penalty and forfeiture are not legal.

 7. State of Maharashtra vs. Swanstone Multiplex Cinema: (24 VST 552 (SC) 2009): Reversing the decision of the HC, the SC held that once the tax was levied, section 3 of the Bombay Entertainments Duty Act entitled the State to collect it from the proprietor subject to the concessions given. In the absence of any express statutory provision the proprietor could not be allowed to retain the benefit of the excess collection.

 8. Jay Vee Rice & General Mills vs. State of Haryana: (35 VST 576 (SC) 2010): Since the payment of the price of the rice received from the Govt. was inclusive of Purchase Tax, the same was required to be deposited with Govt. exchequer. Retention of such purchase tax would amount to unjust enrichment which is not permissible.

 9. Themis Chemicals Ltd. vs. State of Maharashtra (45 VST 64)(Bom): No time limit for refund of excess tax. Once refunded, no forfeiture.

10. Hetampuria Textiles (SA No. 434 of 2008 dated 7-9-2017): If tax is collected separately on purchase and also on sale side and even if sale is allowed as resale, the forfeiture is of the excess amount and not whole tax collected on sale.

Goods

 1. India Security Press: (S.A. Nos. 849 and 850 of 1993, dated 7-6-1996): Bank/Currency notes printed and supplied by the security press are not marketable goods.

 2. Paramount Sintour P. Ltd.: (S.A. No. 1220 of 1995, dated 20-4-2002): Sale of plant duly erected and not agreed to be severed is not that of Goods but of immovable property.

 3. Mahanagar Gas Ltd. (VAT App. No. 401 of 2014 dated 16-11-2015): Underground pipeline for gas distribution held as movable goods.

 4. Everest Flavours: (Appeal No. 2085 of 2001, dated 24-1-2003): DEPB transferred for consideration is Sale of Goods.

 5. Veenkatesh Farm Hatcheries Pvt. Ltd.: (S.A. No. 1752 of 2004 dated 5-8-2006): Sale or Service - Technical know-how - whether 'goods' [1999-2000] — The activity involved advice on various activities like type of feed and nutrition advice, advice on preservation of eggs, advice on sanitation etc. Many of the services were rendered by deputing personnel of appellant. Tribunal held that unless there is deliverable technical knowhow on some media it cannot be considered to be sale. Tribunal also held that the dominant nature of transaction is to render service and no sale of technical know how is contemplated. So holding Tribunal set aside tax on above receipts.

 6. Sunrise Associates: (145 STC 576 (S.C.)): Lottery tickets are actionable claims and excluded from the definition of 'goods' for the purposes of sales tax. H. Anraj : 61 STC 165 overruled.

 7. Vikas Sales Corporation vs. C.C.T.: (102 STC 106 (S.C.)): Import licences called REP licences or Exim scrips are goods.

 8. Mittan Engg. Works (P) Ltd. vs. Collector of Central Excise: (106 STC 201 (S.C.)): Parts cleared from appellant's premises and mono- vertical crystalliser assembled and erected with parts of the customer at customer's site - Not goods liable to duty.

 9. Tata Consultancy Services vs. State of A.P.: (122 STC 198 (S.C.)): Branded software whether goods referred to Larger Bench by Division Bench of the Supreme Court in view of the importance of the matter having global implications. Larger Bench confirmed the judgment of A.P. High Court (137 STC 620 S.C.) that branded software was goods. Also observed that customised software could be 'goods'. However, no judgment given as the issue was not before the S.C. and other issues of situs and whether they were contracts of service were to be considered.

10. Philco Export vs. S.T.O. & Ors. : DEPB Licences are goods freely tradable. Right to claim back credit is tradable. Vikas Sales Corpn. 102 STC 106 followed.

11. Ecostel Mobile Communication: (12 VST 443 (P & H) 2008): Electromagnetic waves or radio frequencies are not goods for sale. Activation charges are not goods.

12. Neoluxe India Pvt. Ltd.: (13 VST 157 (Bom.) 2008): Paper based decorative laminates: Entry relating to plastic laminates always included lamination sheets. Retrospective amendment was clarificatory.

13. Mayuri Yeast India Pvt. Ltd.: (14 VST 259 (SC) 2008): 'Yeast' treated by deptt. for long time as chemical. Entry referred to chemicals of all kinds and hence yeast held as chemical.

14. Premier Films and another: (13 VST 476 (WBTT) 2008): X-Ray Films are not covered by entry relating to photographic film and plates. Where no particular definite clue is available, the meaning as understood in common parlance should be adopted.

15. Kalidas Sheet Metal Industries: (13 VST 313 (SC) 2008): Copper & Brass: Include copper sheets and brass sheets.

16. Infosys Technologies Ltd. vs. SCCCT, Chennai: (17 VST 256 (Mad.)): Non-customised software are goods.

17. Jindal Drugs Ltd. vs. State of Maharashtra: (17 VST 164 (Bom.)): Credit in Duty Entitlement Pass Book (DEPB) are neither actionable claim nor money. Are goods liable to tax.

18. Bharati Airtel Ltd. vs. State of Karnataka: (22 VST 465 (Kar.)): During the provision of broadband connectivity to subscribers for fixed sum, the light energy created while transmitting the subscribers' data through optic fibre cables is goods. It is capable of being possessed, transmitted, delivered and used and to some extent, stored.

19. Infotech Software Dealers Association vs. Union of India: (34 VST 133 (Mad) 2010): Petitioners were in business of reselling of computer software products pursuant to an 'end-user licence agreement'. It was not sale of the software as such, but only the contents of the data stored in the software which would amount to only service and not sale under Article 366(29A)(d) of the Constitution. An item of 'goods' may be a tangible property or an intangible one. It would become goods provided it has the attributes thereof having regard to utility, capability of being bought and sold, capability of being transmitted, transferred, delivered, stored and possessed. If software whether customised or non-customised satisfies these attributes, it would be goods under Article 366(12) of the Constitution.

20. State of Andhra Pradesh vs. Bharat Sanchar Nigam Ltd. (49 VST 98)(AP) - SIM cards, recharge coupon vouchers, mobile telephone rentals on post-paid connections, value added services such as ring tones, music downloads, wall papers and proceeds received on sharing infrastructure not goods. Non-refundable deposits collected by service providers from distributors as security deposits for supply of SIM cards, recharge voucher coupons not taxable. Telephone instruments, mobile handsets, modems, caller identification instruments are goods.

21. Infosys Ltd. (Writ Petition No. 57023- 57070/2013 dated 9-2-2015)(Kar. High Court). Issue about service contract, works contract and sale in relation to software discussed.

22. Atlas Origin India P. Ltd. (VAT App. No. 171 of 2012 dated 3-2-2015)(Trib.) - Held maintenance software involves sale of software.

Goods Return & Repurchases

 1.  Madras Petrochem Ltd. vs. State of Tamil Nadu: 109 STC 233 (Mad.) read with Borroughs Welcome (I) Ltd. (S.A. No. 1094 of 1997, dated 9-11-1998): It was not necessary that the returned goods must come to the place from where they were dispatched. Sufficient evidence like credit note made within time limit produced. Claim of goods return allowed.

 2.  Richardson Hindustan Ltd. vs. State of Maharashtra : (99 STC 1 (Bom.)): The assessee had made an agreement with his distributors that goods which are sold to them but which remained in stock should be sent back or would be repurchased at the same price. On termination of distributorship, such goods remained both in respect of local sales as well as in respect of inter-State sales. Both such returns were within time viz., for local sales within 12 months and for inter-State sales within 6 months. Held that once the goods are sold and the same are thereafter returned by the purchaser to the dealer for one reason or the other within prescribed period, the assessee is entitled to get a deduction of amount refunded by him, from his turnover. The return of the goods by the purchaser per se cannot in any way amount to violation of the terms of the declaration, because the goods on return are still intended for sale and in the usual course of business.

 3.  State of Maharashtra vs. BASF (India) Ltd.: (117 STC 543 (S.C.)): Goods returned to be claimed in the year of sale only. (Not to be followed up to 31-3-1996 — Commr. Cir. No. 19T of 1996, dated 7-8-1996 — 43 STR 46).

Gross Profit

 1. Mahavir Readymade Stores: (S.A. No. 1489 of 1980, dated 31-3-1982): Since the G.P. was worked out without considering expenses, G.P. was held to be inclusive of expenses. Further, additions of expenses for working out taxable sales of OMS purchases deleted by the Tribunal.

 2. Mody & Sons: (S.A. Nos. 14 and 15 of 1982, dated 28-2-1983): Correct method to determine taxable sales out of OMS purchases was to add opening stock and purchases and deduct closing stock and find out the G.P. ratio. G.P. was to be added proportionately to OMS purchases. It was not necessary to add expenses and tax element separately.

 3. Chetan Glasswares Stores: (S.A. No. 511 of 1981, dated 27-8-1982): Sales were inclusive of tax. When tax element was separately added, the G.P. should be exclusive of tax. Hence, tax paid should be deducted from G.P. — Nanalal Nagindas — S.A. No. 1308/80, dated 5-2-1982 followed. Contention that G.P. on OMS purchase was always higher, was rejected by the Tribunal.

 4. NRB Bearings Ltd. (S.A. No. 1643 of 2004 dated 23rd February 2007): Levy of P.T. on Payment of Royalty: Set aside — Payment of Royalty made by the appellant to foreign party for technical know was visited by levy of P.T. The Tribunal held that the appellant has not purchased any knowhow but he just got the right to use it for commencing his new unit. Thus, purchase tax cannot be levied.

Hawala Dealer Beneficiary

  1. Timex Art Décor Pvt. Ltd. vs. State of Maharashtra and Others [(2013) 61 VST 324 (Bom)]:

    ♦  Publishing of names on Govt. website, and

    ♦  Deferment of assessment till the completion of assessment of Hawala Dealer

Section 73 of the MVAT Act, 2002 provides a source of authority for the publication and disclosure of information respecting dealers and other persons in public interest. The publication on the website of the Department under section 73 of the Act is a cautionary exercise. It does not cast a stigma. Such action is within the scope of the provision.

Whether and at what stage the assessment to be made of hawala dealers not for the Court to determine. Department justified in taking necessary steps to complete assessment of dealer in accordance with law. Dealer not entitled to claim that its assessment must be deferred until assessment against hawala dealers.

High Seas Sale in Course of Import

 1.  B. M. Shah & Co.: (Appeal No. 139 of 1989, dated 7-2-1992): The delivery order by the Bank in respect of an air consignment was a document of title to the goods. On the basis of handing over of the same, the High Seas Sales claim was allowed. Confirmed by the Bombay HC in 142 STC 291.

 2.  Surlab Corporation: (S.A. Nos. 956 and 957 of 1991, dated 18-2-1993): Xerox copy of Bill of Lading showing endorsement is sufficient to claim the sales in the course of import.

 3.  Indotex Exports Pvt. Ltd.: (S.A. Nos. 284 and 285 of 1990, dated 17-6-1995): Sales of goods after they were transferred to the bonded warehouse were sales within the State and not sales in the course of import. (Refer Radha Sons International (S.A. 1358-59 of 2007 dated 9-10- 2007) for contrary judgment).

 4.  Tata Iron & Steel Co. Ltd.: (S.A. Nos. 713 & 714 of 2000, dated 9-10-2001): Import of goods in bulk and sale thereof by endorsement and delivery of individual Bill of Lading to various local buyers in small lots after clearance and payment of customs duty by the endorsees — High Seas claim allowed. Provision of sale of goods held as not applicable. (Govt. reference rejected by BHC).

 5.  Minerals & Metal Trading Corpn. of India Ltd.: (S.A. Nos. 388 of 1998 dated 10-4- 2006): High Seas Sale approved by secondary evidence, Endorsement not compulsory. Tribunal held that if for practical difficulty appellant is not able to produce endorsed B/L, which is primary evidence, he can produce secondary evidence. B/E by buyer pre suppose existence of agreement to sale and hence in the absence of any evidence available proving the position otherwise, this secondary evidence should be accepted. Tribunal also held that endorsement on B/L is not compulsory and even by mere delivery transfer can take place.

 6.  Mulchand F. Shah: (S.A. No. 499 of 1998, dated 13-10-2000): Import of gold through MMTC/SBI under replenishment scheme was an integrated transaction, and therefore, covered by Section 5(2) of the CST Act. (Subodh Chandra & Co. DDQ confirmed).

 7.  Anurag Agencies: (S.A. Nos. 1506-07 of 1999, dated 31-3-2001): When the Bill of Entry was in the name of buyer, it can safely be assumed that the Bill of Lading must have been transferred earlier. The transaction was in the course of Import.

 8.  India Tourism Development Corpn. Ltd.: (S.A. No. 489 of 1997 dated 23-7-2004): Sale of goods to incoming international passengers at duty-free shop situated in the customs area, before the goods purchased were cleared by customs authorities on payment of Import duty if payable, were transactions that took place before the termination of the course of Import and therefore, were not exigible to tax under the B.S.T. Act.

 9.  Kirloskar Bros.: (S.A. No. 1362 of 2001 dated 25-11-2004): Even when the assessee cleared the goods and then supplied to his customer in compliance of the condition of import that the import was permitted only for delivery to that customer, it was a case of sale in course of Import where no diversion was possible.

10. Pooja Enterprises : (S.A. No. 867 of 2010, dated 12-8-2013) : Sale from bonded warehouse was allowed as High Seas Sale. Customs frontier of India is crossed only on clearance of goods for home consumption and when custom duty is paid.

11. Commissioner, Delhi Value Added Tax vs. ABB Ltd. (91 VST 188)(SC) - Works Contract sale is covered by sale in course of import if goods imported are as per specification of customer.

12. Adani Exports Ltd. (A No. 169 of 2003 dated 23-3-2007): Bulk import, separate B/L, High Seas Sale allowed. Reference pending in (Sales Tax Application No. 88 of 2008 dated 7-8-2009).

Hotel/Restaurant Sales

 1. DI Canteen: (S.A. No. 2076 of 1998, dated 7-5-2005) (Larger Bench): Benefit of Notfn. Entry 273 admissible to an individual running the factory canteen in the name of and on behalf of the employer company.

 2. Punjabi Ghasitaram: (Appl. No. 117 of 1997, dated 3-8-2002): For the purpose of computing the maximum turnover of ₹ 35 lakh, only supply of food for consumption to be considered, excluding sale of sweets, etc.

 3. Suruchi Lunch Home: (S.A. No. 430 of 2000, dated 10-2-2001): The dealer who has started business in the current year is also entitled to benefit of N/E., since his previous year's turnover can be considered to be zero. The Commissioner's Circular No. 24T of 1994 dated 17-8-1994 held to be improper. (Reference filed by the Commissioner is also rejected by the Tribunal).

 4. Tulsi Restaurant: (S.A. No. 247 of 2001 dated 6-7-2002): For the purpose of this Entry, the condition of payment of 1/12th amount every month is directory in nature and not the main condition for grant of benefit. If substantial compliance of condition was made, benefit was admissible. Reference rejected. reference No. 87 of 2002 dated 12-12-2003.

 5. Aram Fast Food: (S.A. 2093/2001 dated 11-1-2011): Condition of submission of monthly returns incorporated in Notification Entry J/8 cannot be projected into A-13 or 191 Entries.

 6. Tip Top Enterprises (VAT App. No. 41 of 2009 dated 23-4-2013) : Charges for banquet hall etc. not liable for VAT.

 7. Hard Castle Restaurant Pvt. Ltd. (VAT SA No. 461 of 2011 dated 25-4-2018): Charges for Entertainment charged separately. Not to be included in sale price as hotel sale. Not liable to tax.

Incentive Scheme

 1. Whirlpool India Ltd.: (S.A. No. 1212 of 2003 dated 18-3-2009) (Larger Bench): The effect of COE can be changed in appeal against COE and not in appeal against assessment order.

 2. Reliance Industries Ltd.: (S.A. No. 2151/03 dated 29-2-2008): Set-off of other (non-deferral) unit is not required to be reduced from the deferral amount. It can be adjusted against TOT and addl. tax liability of deferral unit. Set-off partakes the nature of tax payment and it can be adjusted towards tax liability of deferment unit. Empico Traders (47 STC 426) followed.

Interest

 1. International Airports Authority of India: (S.A. No. 169 of 1991, dated 22-6-1992): Section 36(3) — No. interest on ad hoc payments prior to 31-3-1994.

 2. Bajaj Auto Ltd.: (S.A. Nos. 762 and 763 of 1995, dated 25-4-1996): Interest u/s. 36(3) and penalty u/s. 36(2)(c) Exp. II in respect of one unit can be remitted against refund in respect of another unit of the appellant.

 3. Time Plast: (S.A. No. 209 of 1994, dated 21-2-1997): Interest u/s. 36(3)(b) needs to be remitted, if dues have arisen on account of retrospective amendments.

 4. S. J. Engineering Co.: (S.A. No. 449 of 1994, dated 29-3-1997): Interest u/s. 36(3)(b) could be remitted, if demand had arisen due to non- production of declarations, if it was proved that the dealer had made sufficient efforts to obtain declarations.

 5. Guest Keen Williams Ltd.: (S.A. No. 1289 of 1995, dated 10-10-1997): When dealer made claims for sales against declarations in returns under bona fide impression that the same would be issued by the buyer, no penalty u/s. 36(2)(c) could be levied.

 6. Industrial Oxygen Co. Ltd.: (S.A. No. 1639 of 1994, dated 25-7-1997): If demand had arisen due to forfeiture of tax, the interest u/s. 36(3)(b) was to be remitted, as sum forfeited was not covered by the definition of tax u/s. 2(32) of the B.S.T. Act.

 7. Shree Mahalaxmi Engineers & Contractors: (S.A. No. 811 of 1999, dated 29-1-2000): Amendment made in Section 36(3)(b) from 1-4- 1994 regarding ad hoc payments made after the last date of filing returns — The Tribunal held that the same was prospective and not applicable to period under appeal i.e., 1991-92.

 8. Repro Computer: (S.A. No. 134 of 1997, dated 25-6-1999): Date of presentation of cheque in bank was to be treated as the date of payment and not the date of clearing by the bank.

 9. C. K. Patel Products: (S.A. No. 1709 of 1998, dated 18-12-1999): When interest u/s. 36(3)(b) levied on entire dues, penalty u/s. 36(2)(c) could be only of a token amount.

10. Sohan Jewellers: (S.A. No. 1042 of 1999, dated 22-12-2000): Liability for Additional Tax/T.O.T. for 1995-96 was in dispute. Remission of interest was granted.

11. Amar Tube Traders: (S.A. No. 1535 of 1999, dated 21-10-2000): Even if interest u/s. 43A was granted on refund @ 12% p.a. (Period 1995-96), still the extra interest @ 12% (levied @ 24% p.a. less interest granted on refund @ 12%) could be remitted on the basis of out-of-pocket theory.

12. Mahendra Traders: (S.A. Nos. 906 and 907 of 2001, dated 20-2-2002): Interest to be levied up to the date of the assessment order and not the date of passing of the revision order on the revised dues.

13. Rashtriya Metal Inds. Ltd.: (S.A. No. 1535 of 2000 dated 25-10-2001): Interest u/s. 43A was required to be granted suo motu by the Appellate Authority as per the provisions of law, if as a result of relief in appeal, the case resulted in refund.

14. Desh Chemicals P. Ltd.: (S.A. No. 1081 of 2000, dated 5-5-2001): Non-receipt of Form C declaration does not amount to concealment of particulars and the benefit of proviso to Sec. 36(3)(d) could not be denied.

15. ITC Agrotech Ltd.: (S.A. No. 2100 of 2001, dated 11-10-2002): Ad hoc payments — Interest u/s. 36(3)(a) not attracted. Interest u/s. 36(3)(b) also not attracted after 1-10-1995 since interest u/s. 36(3)(b), if any, is attracted on differential dues only if the shortfall is more than 10%.

16. Ajantha Motors P. Ltd.: — (S.A. No. 1331 of 2003, dated 22-8-2003): Where differential dues were less than 10%, the appellant's claim for benefit of third proviso to Section 36(3)(b) could not be denied on the ground that proper VAT liability had not been disclosed in the returns.

17. Wartsila NSD India Ltd.: — (S.A. No. 1404 of 2003, dated 23-9-2005) (Larger Bench): Annual return constitutes the last return for the purpose of third proviso to Section 36(3)(b).

18. P.H.W. Materials Handling Ltd.: (S.A. Nos. 1683, 1684, 1685, 1686 & 1687 of 2004, dated 17-2-2007): Interest u/s. 36(3)(a) levied without giving opportunity of hearing: it is bad in law:

Set aside — Tribunal observed that the levy of interest is automatic in the sense that once the interest is held to be leviable, then it has to be levied at mandatory rate as provided under the law. However, for coming to the conclusion that the interest is leviable or not, the opportunity of hearing must be provided to concerned assessee. Since in this case no opportunity of hearing was given to assessee and also on the facts of the case that payments were ad hoc payments, Tribunal held that interest cannot be levied.

19. Arvind G. Daftary and Others: (S. A. No. 1817 of 2002 dated 12-6-2007): Interest on refund under Works Contract Act r.w.s. 43A of BST Act, 1959 — authorities were granting interest on refund under Works Contract Act read with section 43A of BST Act,1959. However on 9-1-2004 the Commissioner of Sales Tax issued Trade Circular by which it was informed that since there is no substantive provision for grant of interest in Works Contract Act and other allied Acts, the grant of interest is not permissible. The S.C. judgment in India Carbon Ltd. (106 STC 460) relied upon by the Commissioner to give above circular. Tribunal after considering submissions held that grant of interest, being in nature of concession, it is allowable to dealers and the said provision cannot be said to be substantive.

20. Priya Dyes & Chemicals Ltd. (S.A.139 of 2001 dated 21-8-2007): Interest on refund also eligible under CST Act r.w. Local Act.

21. Elecon Engineering Co. Ltd.: (Misc. Appl. No. 107 of 2009) (SA No. 224 of 2001 dated 25-8-2006) decided on 31-12-2009: Interest u/s. 36(3)(a) leviable from 1-7-1997 when due date for filing annual return as per Rule 22(4) was 30-6-1997. Although the date was extended till 30-9-1997, it was held that it is only for non-levy of penalties.

22. India Carbon Ltd. vs. State of Assam: (106 STC 460 (S.C.)): Interest for delayed payment — No substantive provision in CST Act — Cannot be charged with the help of provision under the State Act. Retrospective amendment under the CST Act has nullified the effect of this judgment.

23. ONGC Ltd. vs. S.T.O.: (15 STC 580 (Guj.)): Levy of interest not automatic. Department was wrong in contending that no opportunity of hearing necessary because firstly, the dealer was entitled to show that in fact there was no delay in payment before it was asked to pay interest.

24. Medi Herbs vs. CTO, Cuddalore: (31 VST 312 (Mad.)): Order giving effect to appellate order passed after inordinate delay although no time limit fixed for passing the order by the assessing authority. Dealer entitled to interest from 91st day from the date of receipt of appellate order by A.

25. Pepsico India Holdings Ltd. vs. Comm. of Trade Tax (40 VST 220 (SC) 2011): Once it has been confirmed by the court that the tax was payable under the U.P. Trade Tax Act, it would be covered by the term 'the tax admittedly payable' as defined in section 8(1) and the interest thereon would be payable from the date when it was due and not from the date of assessment order.

26. State of Gujarat vs. Shiv Industries (85 VST 88)(Guj): If the additional dues get adjusted against excess in assessment then no interest/penalty can be attracted.

27. Shree Jain Traders (VAT SA 95 of 2014 dated 3-10-2016): Interest u/s. 30(3) of MVAT Act not to be levied if it is adjustable against refund in earlier year.

Inter-State sale

 1. Megha Machine Tools: (S.A. No. 344 of 1997, dated 7-1-2000): Situs of sale transaction falling u/s. 6(2) — Held that in view of Section 9(1) of the C.S.T. Act, the situs of sale in case of transaction falling u/s. 6(2) should be the State from where the dealer could have obtained 'C' form — In this case, transactions u/s. 6(2) were held to be includible for determining the turnover of sales.

 2. H. R. Traders: (S.A. Nos. 582 and 583 of 1998, dated 10-2-2001): If movement from Maharashtra was on account of transaction of sale, delivery taken by the buyer in Maharashtra was of no relevance.

 3. Swastik Plastics: (S.A. Nos. 257 & 258 of 2005 dated 29-3-2006): Dispatch proof (1996-97) — Inter-State sale was disallowed as dispatch proof was not available. Order, Delivery challans, sales bills and 'C' forms were produced. Burden is on Deptt. to prove the averment of no Inter-State sale. Passing of property in any particular state is not decisive. Tribunal allowed claim of inter-State sale.

 4. Industrial Oxygen Co. Ltd.: (S.A. No. 45 of 1990) & Pure Helium (India) Pvt. Ltd. (S.A. No. 592 of 2007): dated 9-7-2010 (Larger Bench): Sale to Bombay High treated as inter-State sale liable to tax under CST Act and not export.

 5. Ajay Trading Co.: (VAT Second Appeal No. 111 of 2010 dated 12-12-2012): The dealer has pre- existing order from the outstate customer. Dealer purchased goods from local dealer pursuant to existing order. Exempt Sale u/s. 6(2) by transfer of document of title to goods is allowed.

 6. Sahney Steel Press Works Ltd. vs. C.T.O.: (60 STC 301 (S.C.)): Movement of goods from H.O. to Branch, pursuant to a specific order placed with branch amounts to inter-State sale of H.O.

 7. C.S.T., Maharashtra vs. Nivea Times: (108 STC 6 (Bom.)): Purchase made from the Customs at Bombay and taken to Vapi factory for actual use there, is an inter State purchase and not a local purchase.

 8. Jambai K.N.M. Textiles (P). Ltd. vs. State of T.N.: (118 STC 77 (TNTST)): Nature of inter State sale discussed in-depth.

 9. State Trading Corpn. vs. A.C. of Commercial Taxes: (124 STC 330): Imported newspaper distributed to various publishers of newspapers as per allotment letter issued by the Registrar of Newspapers, but delivery in West Bengal held to be an inter-State sale as inter-State movement was a covenant of the contract. Passing of the property in West Bengal is immaterial.

10. K. Mohan & Co. vs. State of T.N.: (128 STC 279 (Mad.)): Goods dispatched from Madras to buyer at Kolkata. Buyer failing to take delivery of goods by retiring the documents. Goods sold to another buyer at Kolkata will be an inter-State sale, as goods were sold before termination of inter-State movement, as the first buyer did not take delivery from the carrier.

11. P. A. George & Co. vs. A.C.T.O.: (110 STC 253 (Ker.)): Held for claim u/s. 6(2), EI/C Forms required. No requirement to produce photocopy of endorsed lorry receipt, etc.

12. ACC: (13 VST 90 (Orissa) 2008): Inter-State sale or Branch Transfer - Onus lies on the revenue who dispute the contention of branch transfer and to establish movement as a result of sale.

13. T. K. M. Husain and Another: (8 VST 648 (Ker.) 2007): Exemption of goods notified by KVIC under VAT at point of sale by Mfg. Units approved by KVIC is conditional exemption and cannot extend to inter-State sale. It is also held Commissioner can issue circular under CST Act.

14. Ambica Steels Ltd.: (12 VST 216 (All) 2008): Goods sent for job work or received for job work not amounting to sale should be supported by F Form. The requirement to file declaration in F Form is applicable to goods return claim also. Followed in Johnson Matthey Chemicals (91 VST 385)(Bom).

15. Siddhartha Apparels (P) Ltd.: (13 VST 222 (CSTAA) 2008): Inter-State Sale Movement of goods from one State to another if attributable and is the direct result of a contract of sale entered into by the branch or head office of the assessee it would be an inter-State sale notwithstanding fact that goods are not sent directly but to branch or head office who ultimately delivers the goods. In such case branch acts as conduit pipe.

16. Motor World Ltd. vs. CCT, Bangalore: (26 VST 487 (Kar.)): Purchase of vehicles in Bangalore and delivery given at Bangalore. Buyers having permanent residence outside State and taking temporary registration of vehicle in Bangalore. Vehicles taken out of State and permanently registered in other States. Dealer aware of these facts and sale is an inter-State sale.

Intangible Goods/Technical know-how

 1. Godhavat Pan Masala Products India Ltd.: (S.A. 1727 of 2004 dated 12-1-2007): Royalty paid for use of technical know-how is not purchase but lease transaction and therefore purchase tax u/s. 13 is not payable.

 2. XYTEL India Pvt. Ltd.: (S.A. No. 566 of 2003 dated 23-8-2007): Supply of basic engineering/design package is sale of technical know-how. However preparation of pre engineering package i.e. drawing of plan and other technical details held as service contract.

 3. Thermax Babcock Wilcox Ltd.: (S.A. No. 1575/2004 dated 20-4-2007): Service charges received not sale of technical know-how.

 4. I. W. Technologies Pvt. Ltd.: (S.A. No. 429/04 dated 22-10-2008): Supply of necessary designs and other specifications for modification of the plant amounts to sale of technical know-how liable to tax. Distinguished in Sungrace Engineering Projects Pvt. Ltd. (Second Appeal No.198 of 2015 dated 2-9-2016).

 5. Atos Origin India P. Ltd. VAT Appeal No. 171 of 2012 dated 3-2-2015: Maintenance Service for modification, development, enhancement and customisation of the Standard Software held as Sale.

Interpretation

 1. State of Jharkhand and Others vs. Tata Cummins Ltd. and Another: (145 STC 340 (SC)): When an assessee is promised tax exemption for setting up an industry in a backward area as a term of Industrial Policy, the implementing notification have to be read in the context of the Industrial Policy. In such a case, the exemption notifications have to be read liberally keeping in mind the objects envisaged by the Industrial Policy and not in a strict sense as in the case of exemptions from tax liability.

 2. Leeta Industries: (8 VST 638 (Kar.) 2007): The preamble to a statute discloses the primary intention of the statute but does not override the express provision of the statute. Where language is clear preamble cannot be invoked to restrict the scope.

 3. Assam Tea Brokers Pvt. Ltd. vs. State of Assam 2007: (8 VST 621 (Gau)): Construction that carries out intention of legislature to be adopted clear and unambiguous words must be given effect.

 4. Chaudhary Tractor Co.: (8 VST 10): Construction that continuously updates working of ongoing Act to be followed.

 5. Dhanvantari Botanicals Pvt. Ltd.: (10 VST 33 (Kar.) 2007): Notification of State Govt. under statutory provision is to carry out the objective and policy decision and cannot be repugnant to policy decision approved by cabinet.

Input Tax Credit

 1. Constitutional validity of sections 48(5) and 51(7): Mahalaxmi Cotton Ginning Pressing and Oil Industries vs. State of Maharashtra and Others [(2012) 51 VST 1 (Bom.)] : Section 48(5) of the MVAT Act, 2002, which contains a legislative declaration to the effect that in no case would the amount of set off or refund on any purchase of goods exceed the amount of tax in respect of the same goods, actually paid, if any, under the Act or any earlier law into the Government Treasury and section 51(7) which requires an application for refund and specify the period within which an application can be made are valid.

A set-off constitutes a concession granted by the Legislature. The entitlement of a set off is created by the taxing statute and the terms on which a set off is granted by the Legislation must be strictly observed.

 2. Optival Health Solutions Pvt. Ltd. (63 GSTR 107)(Cal) : Strict interpretation, not to be taken to extent of mindless mechanical application of statute.

 3. ALD Automative P. Ltd. (58 GSTR 468)(SC): Provision in statute not to be read in isolation.

Limitation

 1. Siddhartha Fertichem Pvt. Ltd. vs. Asstt. Comm. Gandhidham & Anr.: (137 STC 58 (Guj.): Limitation for Revision by the superior authority commences from the date of the order sought to be revised.

 2. Silver Spring Spinner (India) vs. State of Tamil Nadu: (46 STC 359)(Mad.): Amendment in the limitation period for reassessment for 5 years from the end of the assessment year to 5 years from receipt of the order. Notice sent when limitation under old law had not expired. New law held to apply and notice held to be within time.

 3. Dharam Pal Satya Pal Ltd. vs. Commr., VAT (46 VST 138) (Delhi-FB) : Assessment order passed under old Act. Revision under new Act permissible if time for revision under old Act had not expired on the date of coming into force of new Act. Even held that subsequent amendment made in new Act for revision with retrospective effect is clarificatory.

Lease & Hire Purchase

  1. Bajaj Auto Finance Ltd.: (13 VST 134 (CESTAT) 2008): Hire purchase finance is different from hire purchase because of the fact that the appellant had the right and control over the goods as seen from the contract between it and its customers, it could not be concluded that it had entered into a hire purchase agreement with its customers for the reason that all hire purchase finance agreements, terms and conditions giving the finance company control over the goods existed.

  2. Goa Carbon Ltd.: (13 VST 456 (SC) 2008): The place where the right to use is transferred assumes importance for determining tax on right to use goods and not the place of delivery.

  3. CTT vs. Prince Tourist Bus Service: (13 VST 412 (All) 2008): Hiring of buses to company with driver and conductor for transportation of employee to factory and back does not amount to transfer of right to use.

  4. TATA Sons Limited (Writ Petition No. 2818 of 2012 dated 20-1-2015): Held that in relation to brand name (intangible goods) the lease transaction takes place even if the use is allowed on non-exclusive basis.

  5. Waltor Buthello of Mumbai vs. The Commis-sioner of Sales Tax (MVAT No. 33 of 2016 dated 7-2-2017)(BHC): Held that when the permit of the vehicle is in the name of lessee, it is lease transaction.

Maintainability: MVAT Refund

  1. Sangram Industries Ltd.: (VAT S.A. 8 of 2007 dated 20-12-2007): Order in Form 502 reducing the refund is appealable.

  2. Lloyds Steel Ind. Ltd.: (VAT S. A. 4/07 dated 27-7-2007): Refund as per Form 501 cannot be curtailed without assessment u/s. 23.

  3. Sangvi Management Services Pvt. Ltd. (VAT S.A. No. 56 of 2014 dated 13-7-2015): Refund application was rejected on ground that assessment time barred. Tribunal directed to process/assess the application following Bombay High Court judgment in case of Silver Dot. W. P. No. 1120 of 2015 dated 3-3-2015.

  4. Silver Dot Convertors Pvt. Ltd. (W.P. 1118 of 2015 dated 3-3-2015)(Bom.): Refund shown in return is required to be processed.

Manufacture or resale

  1. Ahura Enterprise: (App. No. 46 of 1996, dated 21-8-1998): Preparation of paste of ginger and garlic does not amount to manufacture. (Confirmed by Bom. H.C. in 2003.)

  2. Mah. Agro Ind. Dev. Corp. Ltd.: (Appl. Nos. 136 & 137 of 1997, dated 29-11-2001): Mixing of fertilisers does not amount to manufacture — Resale claim admissible — Purchase tax held not leviable u/s. 13AA on purchase of fertilisers and oil cakes. [Direct Reference filed by Commissioner rejected in 2003 by Bom. H.C.: 136 STC 152 (Bom.)]

  3. Rumi Beverages: (Appl. No. 22 of 1999, dated 11-10-2002): Mixing/blending tea/coffee with elaichi, sugar and milk powder did not change their character therefore, it did not amount to manufacture.

  4. Sakhi Industries: (Appl. No. 41 of 1993, dated 25-11-2004): Paper perforated punched and sold as computer stationery paper — amounted to manufacture.

  5. Dynamix Dairy Ind. Ltd.: (A. 18 of 2004 dated 17-3-2006): The activity of processing cow milk in tone milk or skim milk by which the natural cow milk is sterilised and fat levels are controlled does not amount to manufacture as no new commodity comes into existence. The nature and character of milk remains same.

  6. Balaji Adhesives: (A. No. 44 of 1998 dated 22-9-2006): Manufacture - In DDQ dated 31-1-1998 the activity of converting Tapioca Powder (starch) into starch paste or starch based adhesive paste was held as amounting to manufacture. The rate of tax on the paste was held at 13% instead of 4% (u/e.C-I-18) as contested by appellant. In appeal Tribunal confirmed above DDQ.

  7. Jai Corpo. Ltd.: Ispat industries & Others (A- 95 of 2001 dated 31-1-2007): Manufacture - HR to CR Coils: — Activity of Converting Hot Rolled Coils to Cold Roller Coils (HR to CR) were held as manufacture in D.D.Q. In certain cases there were few more activities like annealing, skin pass, slitting, cut to length etc. Tribunal held that even if two different commercial commodities can be grouped together it is the nature of activity which will decide the correct position. Here the goods remained same except physical changes.

  8. A. A. Aatarwala & Sons: (S.A. 89 of 1994 dated 24-1-2007) Mixing of Aueromatical Chemical & Essential Oil to prepare perfume is manufacturing process.

  9. Ispat industries, Jaicorp Ltd.: (S.A. 95/2001 dated 31-1-2007): Activity of converting hot rolled to cold rolled coils held as not amounting to manufacture.

10. Teekay Tubes Ltd.: (S.A. 190-191/04 dated 4-3-2007): Steel Tubes converted to Bevelled Tubes does not amount to manufacturing. K.A.K. Anwar not applicable.

11. Hindustan Industries: (S.A. Nos. 940 to 947/2005 dated 7-9-2009) (Larger Bench): Activity of crushing limestone, red lumps, ladi tukda, rough stones, dolomite lumps into powder called "pilli mitti" does not amount to manufacture.

12. Kishor Food Products Pvt. Ltd./Devika Food Products Pvt. Ltd.: (R.A. Nos. 41 and 42/03 dated 31-3-2009 r/w. S.A. Nos. 131 and 132/97 dated 8-3-2002): Activity of converting of whole grain of pulses into split form of pulses does not amount to manufacture within the provisions of rule 3 of BST Rules.

13. Gas Suvidha Petrochem Pvt. Ltd.: (A. No. 23-04 dated 13-10-2008): Activity of obtaining LPG by blending propane gas with butane gas amounts to Manufacture and COE can be issued to the dealer.

14. S. K. M. Steel Ltd.: (S.A. No. 228 of 2008 dated 6-7-2012): Conversion of black steel bars into bright steel bars is not manufacturing. Sale u/s. 5(3) allowed.

15. New Nagpur Copra Industries vs. the State of Maharashtra: (60 STC 380) (Bom.-Nagpur Bench): Preparing copra powder from copra would not amount to manufacture.

16. State of Gujarat vs. Push Colour & Chemical Co.: (49 STC 158 (Guj.)): Adding globar salt, soda-bi carb or soda ash to dilute dyes and chemicals does not amount to manufacture.

17. Kumar Paper Product vs. the State of T.N.: (81 STC 49 (Mad.)): Coating of wax on paper to make it waterproof process does not amount to manufacture.

18. State of Maharashtra vs. Shiv Dutt & Sons: (84 STC 497 (S.C.)): Charging of battery is not manufacture.

19. C.S.T. Maharashtra State vs. Rajshree Electronics: (98 STC 403 (Bom.)): Recording songs and programmes on blank cassette tape doesn't bring into existence a commercially different commodity. Whether cassette tapes after recording of songs and programmes lose their original identity and become a new and distinct marketable commodity? Held — No. Contradictory view taken in Balayee Audio & Video Co.,140 STC 73 (A.P.)

20. C.S.T. vs. Mahalaxmi Stones: (97 STC 601 (Bom.)): Confirmed by S.C. in 129 STC 79. Crushing of Boulders into small size stones i.e. Gitti, does not amount to manufacture.

21. C.S.T. vs. Arvind Trading Co.: (98 STC 288 (Bom.)): Cotton yarn sold as cotton thread after twisting. Held not resale of cotton yarn.

22. C.S.T. vs. M/s. Delhi Iron & Steel Co. (P) Ltd.: (98 STC 202 (Bom.)): The assessee had purchased rerollable scrap in the form of old ship. The condemned and unserviceable ship purchased by the assessee was not a ship but rerollable scrap in the form of old ship for dismantling. No process whatsoever was applied to the said goods, not to speak of any process of manufacture. The levy of P.T. u/s. 13 not justified.

23. Rainbow Steel Company: (47 STC 298 (S.C.)): Machinery sold after use remains as machinery. Hence, resale should be allowed.

24. C.S.T., Maharashtra State, Bombay vs. Ruby Surgical: (106 STC 26 (Bom.)): Absorbent cotton wool prepared by cleaning, ginning, drying and sterilising is cotton in unmanufactured state.

25. Ashirwad Ispat Udyog vs. State Level Committee: (112 STC 207 (S.C.)): Cutting of iron and steel scrap in bulk into pieces that can be conveniently utilised in rolling mills and foundries by a mechanical process, held as manufacture.

26. Indian Poultry & Others vs. S.T.O.: (113 STC 507 (S.C.)): Rearing of chicks over a period of 5 weeks under strict control of air, temperature, standardised feeding, medication & chemicals, and sale of broilers amounts to manufacture of goods, within the special meaning of manufacturing in the M.P. General Sales Tax Act,1958.

27. Union of India and Others vs. J. G. Glass Ind. Ltd.: (114 STC 387 (S.C.)): Printing of logos on glass bottles does not amount to manufacture.

28. Godrej Soaps Ltd.: (145 STC 137 (Bom.)): Refining of oil amounts to manufacture in view of clarification amendment made to Rule 3 of the BST Rules.

29. Hindustan Poles Corporation vs. Commissioner of Central Excise, Calcutta: (145 STC 625 (SC)): The process carried on by the assessee of manufacturing stepped transmission poles, viz., of joining by welding three pipes of different dimensions to obtain a desired length, was held as not a process of manufacture, as it did not change the original basic identity or original character of M.S. welded pipes to make them a new marketable product.

30. Sonebhadra Fuels vs. Commissioner, Trade Tax, U.P., (and other appeals): (147 STC 594 (SC)): The process of mixing crushed coal with binders and pressing in the briquetting press to regular shape is processing, treating or adapting coal within the meaning of the definition of "manufacture". Process of making Coal briquettes from coal was held as manufacture.

31. Commissioner of Sales Tax, Mumbai vs. Virema Laminates Pvt. Ltd.: (148 STC 558 (Bom.)): Process of laminating GI, CRCA and aluminium sheets does not involve manufacture.

32. Crane Betel Nut Powder Works vs. Commissioner of Customs & Central Excise, Tirupathi: (6 VST 532 (SC)): The process involved in the manufacture of sweetened betel nut pieces did not result in the manufacture of a new product as the end-product continued to retain its original character though in a modified form.

33. K. C. Metal Industries: (35 VST 403 (Bom) 2010): Goods supplied to works at Vapi in Gujarat pursuant to order placed by Administrative Office in Mumbai established by facts supported by documents is a transaction of Inter-State Sale falling under CST Act (74 of 1956), Section 3(a). Order of Tribunal not justified in holding the sale in question was not inter-State sale. (Applied: 35 STC 445 (SC) 1975), (38 STC 475 (SC) 1976), (108 STC 6 (Bom) 1998).

Natural Justice

 1. Hindustan Apparel Industries: (S.A. No. 649 of 1979, dated 5-7-1984): An order passed without hearing could not be cured by giving hearing at the Appellate stage.

 2. Precient Engineers: (S.A. Nos. 296, 308 and 309 of 2000, dated 8-12-2000): When show-cause notice allowed, only four days for reply out of which two were holidays, it was violation of natural justice.An order which was a nullity cannot be improved upon by higher forum.

 3. Herdillia Unimers: (S. A. No. 445 of 2000, dated 21-4-2001): An order without reasons was no order in the eyes of law.

 4. Mahalaxmi Cotton Ginning Press & Oil Ind. (VAT SA 195 of 2015 dt. 30-10-2017): If hawala allegation, cross examination to be given.

 5. Shyam International: (S.A. Nos. 925 and 926 of 2005, dated 3-12-2012): Form F was disallowed on the ground of R.C. mentioned in the F forms were not genuine. The Department failed to provide cross verification of materials as demanded by the assessee. The Tribunal set aside the disallowance on the ground of non-compliance of principles of natural justice.

Notifications

  1. Chunilal Asaram & Co.: (A.178(A) of 2004 dated 20-10-2006): J-8-VAT (1996-97) J-8— Benefits withdrawn as the returns were not filed as per J-8. Tribunal concurred with earlier judgments and justified rejection.

  In case of Auto India (Sales Tax Reference No. 6 of 2008 dated 10-3-2015): Bombay High Court has held that such condition is capable of compliance and not mandatory.

  2. State Bank of India vs. State of Andhra Pradesh: (70 STC 215 (AP)): Notification issued cannot be withdrawn retrospectively.

  3. Amar Agencies vs. State of Maharashtra (W.P. No. 4944 of 2013 dated 5-5-2017) : Explanation added in Entry A-45A for taxation of specified unmanufactured tobacco is prospective from 1-4- 2012 and not retrospective.

  4. Bashir Oil Mills vs. State of Maharashtra: (90 STC 195 (Bom.)): Notification exempting all sales within the State of Maharashtra gives general exemption attracting Section 8(2A) of the CST Act,1956.

  5. Shiv Sainath Rubber Ind. Pvt. Ltd. vs. State of Rajasthan: (103 STC 500 (Raj.)): Exemption to footwear up to ₹ 20 per pair, manufactured by small-scale industry, is a general exemption as per Section 8(2A) of the CST Act, 1956.

  6. Collector of Central Excise vs. New Tobacco Co.: (109 STC 376 (S.C.)) : Notification can be said to have taken effect only when it is so published to make it known to the public, unless provided otherwise. If publication is through Gazette, mere printing it is not enough, unless it is made available to the public. Also see Ganesh Das Bhojraj vs. Union of India: 119 STC 293 (S.C.) for different view.

  7. Tata Motors Ltd. vs. State of Jharkhand: (55 VST 323) (Jhar.) - Exemption as per notification u/s. 8(5) of the CST Act, not restricting itself to section 8(1) or (2), is available even when C form not given. Period 2000-01.

  8. Prism Cement Ltd. vs. State of Maharashtra (54 VST 104) (Bom) : The amendment in section 8(5) of the CST Act on 11-5-2002 did not curb the rights of the State Govt. to grant whole or partial exemption to inter-State sales made u/s 8(2) i.e., unregistered dealers. Requirement of C form can be dispensed away in case of such dealers. Notifications issued prior to 11-5-2002 valid even after the amendment.

  9. Videocon Industries Ltd. (VAT SA Nos. 15 & 16 of 2016 dated 20-2-2017): Under CST Act PSI benefits are to be given in full without pro rata working as per sections 93 & 93A of the MVAT Act.

Notional Sales Tax Liability

  1. Multi Films Plastic P. Ltd. vs. State of Maharashtra: (44 STR 24 (Bom.)): For the purpose of computation of NSTL, purchase tax payable will have to be included after reducing set off u/r. 41D. (See in the light of Rule 31AA.)

Packing material

  1. Shantilal Kunvarji & Co. vs. State of Maharashtra: (99 STC 173 (Bom.)): Rate of tax payable on sale of packing material u/s. 15A of the BST Act up to 31-3-1989 and after 1-10-1995 will be the same as applicable, actually to the goods packed.

  2. Kusum Laminating & Packaging Industries vs. State of Tamil Nadu: (101 STC 476 (Mad.)): Packing material can be sold against H form and be claimed as exempt u/s. 5(3) of the CST Act.

  3. Malik Traders vs. State of Maharashtra: (77 STC 411 (Bom.)): There is an implied sale of packing material when packing is done as per the instructions of the buyer, and for that purpose, cost of packing material is immaterial.

  4. Chettiar Ind. Corpn. vs. State of Tamil Nadu: (113 STC 334 (Mad.)): Sale of packing material supplied to exporter of sea food covered by Section 5(3) of CST Act, 1956.

  5. Udaipur Distillery Co. Ltd. vs. Rajasthan Tax Tribunal: (132 STC 489 Raj. Tax Trib.): When liquor is sold in bottles, there is no presumption of sale of bottles separately, although price of bottles normally gets included in the price of liquor. Sales of packing materials is to be independently proved.

  6. Co-operative Company Ltd.: (7 VST 174 (SC) 2007): Dealer is selling Country Liquor in bottles. Containers of the principal commodity which is the subject matter of contract of sale cannot be included in the taxable turnover in the absence of an implied contract for the sale of containers. Dealer is not seller of bottles hence Schedule Entry of Glass Bottles and Phials under U.P. Trade Tax Act (15 of 1948) is not applicable. (Relied on: 19 STC 84 (SC) 1967).

  7. Indian Dyestuff and Chemical Mfg. Co.: (30 VST 286 (Bom.) 2010): Dealer is selling dyes and chemicals packed in plastic drums and plastic bags which had a substantial value of their own and were used for convenience of transport of goods and could be used after use of chemicals and were separately classified as Schedule Entry Under BST Rules, 1959, Form 14 were sold impliedly to the vendors and hence no Purchase Tax is leviable. (Relied on: 77 STC 411 (Bom.) 1990).

Part payment

  1. Aubir Corporation: (S.A. No. 1341 of 1995, dated 6-9-1996): The Tribunal can deal with the quantum of part payment in the Second Appeal filed against the summary dismissal of appeal for non-payment of the part payment.

  2. Babulal Bhutaji Soni: (R.A. No. 51 of 1998 (Arising out of S.A. Nos. 345 & 346 of 1998)): Reference — Interlocutory order — In S.A. against part payment order, Tribunal fixed lower amount of part payment — Commissioner of Sales Tax filed Reference Application in relation to such order — Held, no reference lies against such interlocutory order.

  3. Lucas India Service Ltd.: (S.A. Nos. 252 and 253 of 2011, dated 1-11-2011): The First Appellate Authority fixed the part payment without giving any reason for the particular quantum of the same. The Tribunal directed to stay the orders without any part payment.

  4. Ramdev Pipe Fitting : VAT Appeal No. 329 of 2013, dated 24-9-2013: Purchase from Non-genuine dealers. In the First Appeal entire amount was fixed as part payment i.e. tax interest and penalty.

In appeal against the same Tribunal directed to make only payment of tax and not the interest and penalty for issue of stay order.

  5. Shree Laxmi Steel Industries: VAT Appeal Nos. 6 to 11 of 2013, dated 6-8-2013 : In appeal against part payment many issues were raised including limitation, legality of transaction-wise assessment u/s. 23(5) and status of the vendors was not traceable.

Considering the circumstances, Tribunal reduced part payment and fixed only @ 70% of basic tax amount.

Penalty u/s. 36(2)(c)/29(3)

  1. Sandoz (India) Ltd.: (S. A. No. 259 of 1980, dated 25-1-1982): Levy of penalty u/s. 9(2) read with Section 36(2)(c) for want of production of 'C' Forms could not be justified and it could not be said that the dealer had filed returns with inaccurate particulars.

  2. Umasons X-ray Equipments (P) Ltd.: (S. A. No. 19 of 1979, dated 6-3-1980): Carry forward set off along with current set off has to be considered while levying penalty u/s. 36(2)(c) Expl. I.

  3. Mahavir Electric Stores: (S.A. Nos. 382 and 383 of 1980, dated 27-8-1980): Penalty u/s. 36(2)(c) Expl. I could not be levied where resale claim was disallowed for want of Section 12A certificates and no gross negligence could be attributed.

  4. Cotton Corpn. of India Ltd.: (S.A. Nos. 699 and 700 of 1987, dated 30-3-1988): When assessment resulted in refund or nominal dues, levy of penalty u/s. 36(2)(c) Expl. II becomes technical.

  5. Rashtriya Mazdoor Madhyavarti Sahakari Grahak Sangh: (Appeal No. 10 of 1989, dated 16-11-1989): Enhancement of penalty u/s. 36(2)(c) Expl. I by action u/s. 57 was not justified as penalty was a matter of discretion.

  6. Graphic King: (S.A. Nos. 368 to 371 of 1988, dated 18-11-1988): No penalty u/s. 36(2)(c) Explanation II can be levied, if revised returns are filed late.

  7. Distributors Pvt. Ltd.: (S.A. No. 1410 of 1990, dated 12-8-1993): Reasonable opportunity of hearing is a pre-condition for levy of penalty u/s. 36(2)(c) Expl. II. Taking signature in the proceeding sheet on the day of final hearing is nothing but an empty formality.

  8. American Silk Mills: (S.A. No. 864 of 1995 dated 20-9-1997): Mere signature in Rojnama did not amount to 'meaningful opportunity'. Hence, penalty was set aside.

 9. Thermax Babcock & Willcock Ltd.: (S. A. No. 1025 of 2000, dated 18-12-2000): No penalty could be levied for the first time vide a rectification order u/s. 62.

10. U. B. Construction: (S.A. No. 99 of 2003, dated 30-8-2003): For a valid imposition, it is essential that a show cause notice containing the charge was issued followed by a hearing.

11. Popat Ramchandra Durge (VAT SA No. 145 of 2013 dated 5-12-2014): Excess set off shown in returns. On differential dues penalty u/s. 29(3) levied. Held that even if claims in returns are not accepted, no penalty to be attracted.

12. Valia Associates (VAT SA Nos. 11 & 12 of 2011 dt. 24.4.2018): No penalty u/s.29(3), if set off disallowance is on ground of mismatch.

Penalty u/s. 36(3)

 1. Hind Wire Industries: (S.A. No. 1097 of 1992, dated 15-10-1994): Appellate Authority has no power u/s. 55(6)(b) to remand the matter relating to penalty. They have either to confirm, reduce or enhance the penalty.

 2. Prima Industries: (S.A. No. 919 of 1983, dated 24-8-1984): Remission of penalty u/s. 36(3) equal to the rate of penalty provision was given, after distinguishing the Vijay Machinery judgment.

 3. Chand Sali Jangal Kamgar Sah. Soc. Ltd.: (S.A. No. 446 of 1988, dated 29-9-1989): Additional tax not shown in returns was not liable to penalty u/s.36(3).

 4. Herdillia Chemicals Ltd.: (S.A. No. 866 of 1990, dated 28-2-1991): Excess tax paid as per revised return for earlier quarter adjusted against tax due for subsequent quarter — No penalty u/s. 36(3).

 5. Commissioner of Sales Tax vs. Empico Traders: (47 STC 426 (Bom.)): Set-off allowed should be considered as tax paid for determining shortfall for levy of penalty u/s. 36(2)(c) Expl. I.

 6. Hindustan Steels Ltd. vs. State of Orissa: (25 STC 211 (S.C.)): Penalty is a quasi-criminal proceeding and should not ordinarily be imposed, unless party is deliberately defying the law or was guilty of conduct, contumacious or dishonest or acted in conscious disregard of its obligations.

 7. Premier Automobiles Ltd. vs. State of Maharashtra: (48 STC 552 (Bom.)): Penalty u/s. 36(3) cannot be levied on ad-hoc payment.

 8. C.I.T. vs. S.M.P.K. Kochamma Peroce: (1984 L.P.T.C. 266 (S.C.)): If returns are not amended as per law, it does not amount to concealment, hence no penalty can be levied.

 9. Addl. Comm. of Sales Tax vs. Sudarshan Talkies: (200 ITR 153 (Delhi)): Penalty cannot be levied in Revision proceedings.

10. Hindustan Apparel Ind. vs. State of Maharashtra: (98 STC 433 (Bom.)): There is a clear distinction in the power of the Appellate Authority in an appeal against an order of assessment and in appeal against an order of penalty. The Appellate Authority while disposing an appeal against an order of penalty cannot set aside the penalty so as to remand and to enable the lower authority to impose the same afresh.

11. Indoswe Engineers (P) Ltd. vs. State of Maharashtra: (101 STC 177 (Bom.)): Penalty u/s. 36(2)(c) Expl. II cannot be levied when assessment is made on the basis of books of account and the dealer has furnished returns, although late. It can be levied only when no return is filed and best judgment assessment is done u/s. 33(5).

12. Metcon Engg. Works vs. State of Maharashtra: (108 STC 56 (Bom.)): Failure to pay tax due as per return within prescribed time is not a case of concealment of turnover and no penalty u/s. 36(2)(c) Expl. I can be levied.

13. Comm. of Income Tax vs. Jolly Steel Ind. Pvt. Ltd.: (114 STC 275 (Bom.)): No part of penalty levied u/s. 36(3) of the BST Act, 1959 is compensatory, and hence, it is not an allowable deduction in computing income u/s. 37(1) of the Income-tax Act,1961.

14. P. K. Ali Haji: (15 VST 165 (Ker) 2008): Voluntary filing return and payment of tax by dealer cannot be subjected to penal interest.

15. CST, UP vs. Sanjiv Fabrics: (35 VST 1 (SC)): Expression 'falsely represents' in section 10(b) of the CST Act suggests that dealer has to act deliberately in defiance of law. Mens rea is a condition precedent and burden of proof on the deptt.

16. Additional Commissioner of Sales Tax, VAT III, Mumbai vs. Ankit International (46 VST 1) (BHC): The penalty u/s. 61(2) is discretionary and can be reduced.

Penalty u/s. 36(4A)

 1. Styne Electrics: (S.A. No. 1793 of 1994, dated 31-7-2000): Penalty levied summarily without identifying late returns was set aside.

 2. Sony Wines: (S.A. No. 1196 of 2004, dated 24- 9-2004): Imposition without issue of show cause notice was bad.

Penalty u/s. 29(8)

  1. Abhay Sales Corp.: (VAT S.A. No. 56/09 dated 11-06-2009): Return for Q.E. 30-9-2008 filed late by 3 days due to sickness of the appellant. Penalty set aside.

  2. Ramniklal Nemichand: (VAT No. 31 of 2008 dated 5-12-2008): Notice mentioned period of 3 years 2005-06, 2006-07 and 2007-08. Finally penalty order passed for 1-4-2007 to 30-9-2007. Penalty set aside as no specific charge was made and no effective hearing given.

Penalty u/s. 61(2)

  1. Centinial Surgical Suture Ltd.: (S.A. No. 61 of 2010 dated 23-8-2010): Penalty for late filing of the audit report was set aside looking to the dealer's consistent clear track record in filing returns, paying taxes etc.

  2. Balaji Steel and Cement Traders: (S.A. Nos. 90 and 91 of 2009 dated 10-7-2010): Penalty u/s. 61(2) is discretionary and the burden of proof is on the revenue to prove the culpability. Overall compliance with the law of the dealer is the most important guiding factor while levying the penalty.

  3. Ramnarayan Ramratan Dahad: (VAT S.A. No. 23 of 2012 dated 10-9-2012): In absence of specific mention of penalty amount in order, it ceased to be a valid order and demand notice had no significance under the law. Penalty order u/s. 61(2) set aside.

  4. Anusuya Auto Press Parts Pvt. Ltd. (VAT- Second Appeal No. 192 of 2011 dated 13-8-2012): Differential dues due to non production of forms, held no penalty u/s. 29(3) attracted.

  5. Additional Commissioner of Sales Tax vs. Ankit International (46 VST 1)(Bom): Authorities have discretionary power to levy penalty under section 61(2).

Principle of Natural Justice

 1. Shyam International: (S.A. Nos. 925 and 926 of 2005, dated 3-12-2012): Form F was disallowed on the ground of R.C. mentioned in the F forms were not genuine. The Department failed to provide cross verification of materials as demanded by the assessee. The Tribunal set aside the disallowance on the ground of non compliance of principles of natural justice.

Promissory Estoppel

 1. Tapti Oil Industries vs. State of Maharashtra: (56 STC 193 (Bom.) (FB)): If the State Government in exercise of its executive powers or otherwise makes promises and any person acts and alters his position accordingly, then the State Government cannot resile from its promise or representation. Principle of promissory estoppel applies.

 2. I.T.C. Bhadrachalam Paperboards & Another vs. Mandal Revenue Officer, A.P.: (110 STC 590 (S.C.)): A Notification cannot take effect if it is not published according to the statutory requirement and no promissory estoppel can be claimed in respect of such invalid Notification.

 3. Wipro Ltd. & Anr.: (135 STC 503 (Bom.)): Concession granted by Govt. can be withdrawn by the Govt. only and not by the Department Authority by Circular. Further, no retrospective withdrawal permissible.

Prospective overruling

 1. Somaiya Organics (India) Ltd. & Anr. vs. State of U.P. & Anr.: (123 STC 623 (S.C.)): The principle of prospective overruling is too well enshrined in our Jurisprudence for it to be disturbed.

Purchase Tax

 1. WIPRO Ltd. & Anr. vs. State of Maharashtra: (S.A. No. 727 of 1989, dated 21-12-1996): P.T. u/s. 13AA is leviable only on the percentage of branch transfer in excess of eligible sales as per Commr's Cir. No. 1176/B/SA-3264, dated 13-2-1978, in respect of contravention of Form 15.

 2. Leben Lab. Pvt. Ltd.: (S.A. No. 337 of 1997, dated 19-12-1998): Measuring cups and droppers purchased on BC Form. No contravention and hence Purchase Tax u/s. 41(2) is not attracted.

 3. Jay Kee Plastics: (S.A. Nos. 98 and 99 of 1998, dated 21-9-2001): P.T. not leviable on car purchased by partner and introduced by him as his contribution towards capital in the firm.

 4. Cadbury India Ltd. : (S.A. No. 741 of 1996, dated 5-1-2002): P.T. u/s.13AA is leviable on net purchase price where tax has been charged separately.

 5. Dynacraft Engineers: (S.A. No. 127 of 1998 dated 25-1-2002): P.T. u/s. 13AA leviable even if material used in the same form in the execution of works contract in Maharashtra.

 6. Associated Breweries & Distilleries Ltd.: (S.A. No. 745 of 2003, dated 18-10-2003): Held that PT u/s.13 was not attracted on canteen expenses incurred, as food supplied by the canteen contractor was sold by the appellant- company to its workers.

 7. P. N. Gadgil: (Appeal No. 162 of 1995, dated 29-1-2000): Effect of Notification on 'Tax' - Meaning considered - Purchase Tax to include Purchase Tax leviable under all provisions of the Act. [Please refer Satguru Agro Industries Ltd. - S.A. No. 971 of 2001 dated 31-5-2003 (Larger Bench)].

 8. Bajaj Auto Ltd.: (S.A. No. 1961 of 2003, dated 30-9-2005) (Larger Bench): Purchase Tax leviable for contravention of F-15 — Purchases of fuel like LDO/Gas to be used in furnaces for manufacture of finished goods transferred to Branch.

 9. Mehtalia Overseas: (S.A. Nos. 2299/2300 of 2001, dated 29-1-2005): P.T. u/s. 14 payable for contravention of recitals is to be paid at the rate prevalent on the date of purchase and not the date of contravention.

10. Chunilal Asaram & Co.: (A.178(A) of 2004 dated 20-10-2006): Purchase price for reduction under VAT — Removal of octroi etc. from Purchase Price was justified since they were post sale expenditure. In respect of commission Tribunal remanded the matter to find out nature of commission i.e., if reduces sale price of vendor to reduce purchase price of appellant.

11. C. M. Industries: (S.A. 503 of 1993 dated 29-11-2006): Purchase Tax u/s. 41(2). Exempted Unit for decorticating of groundnut to manufacture husk powder. Purchased groundnut against 'BC' Form. Tribunal noted the internal instructions from Govt. to Commissioner of Sales Tax as also fact that the E.C. was not cancelled. Tribunal also found that in prior and succeeding year the benefit is allowed. Therefore Tribunal deleted the Purchase Tax.

12. Madhuri Paper Board Ind.: (S.A.146 of 2005 dated 4-11-2006): Purchase Tax u/s. 13-R.D. Purchases - P.T. u/s. 13 was levied on machinery purchases as only proforma bill was available. Tribunal observed that for RD purchase regular invoice is not necessary, if otherwise deptt. can ascertain that the purchase is from RD. It is for resale that invoice is required. Tribunal directed to delete purchase tax.

13. Fortune Steel Industries: (SA 1571/2005 19-1-2011): PT u/s. 13 cannot be levied where the Vehicle was introduced by a partner as part of his contribution to capital of the firm.

14. Hotel Balaji vs. the State of Haryana: (88 STC 98 (S.C.)): Dissenting from the judgment in Good Year India Ltd. (76 STC 71 S.C.), the Apex Court upheld the power of the State Legislature to levy P.T. on purchase price of raw materials used in the manufacture of goods which are disposed of otherwise than by way of sale in the State or are consigned outside the State.

15 C.S.T. vs. The Billion Plastic P. Ltd.: (98 STC 184 (Bom.)): If the person from whom the goods are purchased is not a dealer within the meaning of Section 2(11), then no P.T. u/s. 13 can be levied. The burden is on the dealer to prove that his vendor is not a dealer under the Act. Purchase tax u/s. 13 can be levied on a dealer only if he carries on the business of buying and selling those goods. Any and every purchase made by a dealer would not fall u/s.13 of the Act.

Rate of tax

  1. Premier Breweries vs. State of Kerala: (108 STC 598 (S.C.)): Value of packing material should be included in turnover of goods, even if the packing material is shown separately in the invoices and is taxable at the same rate as its contents.

  2. Comm. of Sales Tax, Maharashtra vs. V. L. Inds.: (112 STC 214 (Bom.)): Gulkand is not food or foodstuff covered by Entry C-II-27, but mouth freshener covered by Entry C-II-102.

  3. Union of India & Ors. vs. G. D. Pharmaceuticals Ltd. & Anr.: (118 STC 19 (S.C.)): 'Boroline', an antiseptic boric ointment containing boric acid and zinc oxide is essentially a medicine falling within tariff item 14-E of the Central Excise Tariff Act, 1985 and not a cosmetic or toilet preparation.

  4. V. C. Ramalingam & Sons: (127 STC 382 (Mad.)): The term 'capable of being used' in entry relating to medicines should be interpreted as 'used primarily'. Hence, Vicco Vajradanti toothpaste and Vicco Turmeric Cream are not medicines as they are used primarily as tooth pastes and creams and not as medicines.

  5. Dey's Medical Stores Ltd. vs. Commissioner of Trade Tax, U.P.: (134 STC 1): 'Keokarpin' brand hair vitaliser, baby oil, massage oil and antiseptic cream held as medicines and pharmaceutical preparations and not cosmetics. Interpretation favourable to assessee preferred.

  6. Neelam Appliances: (145 STC 301 (Bom.)): Stainless steel water filters are not household utensils, but are appliances having function of filtering water.

  7. Khosla Kesharwala: (145 STC 57 (Bom.)): Saffron in its natural form is not an ayurvedic medicine, but falls in entry relating to culinary and flavouring essences.

  8. Commissioner of Sales Tax vs. Bhima Sahakari Sakhar Karkhana Ltd. (95 VST 345) (Bom). "Bagasse" is held covered by entry for sugar cane.

Reassessment

  1. Gajanan Sahakari Mudran Mandal Ltd.: (S.A. No. 456 of 1982, dated 28-9-1984): The change of opinion of Assessing Authority does not confer the jurisdiction to reassess the assessee u/s. 35 of the B.S.T. Act, 1959.

  2. New Chemi Industries Pvt. Ltd.: (S.A. No. 110 of 1979, dated 4-8-1984): The S.T.O. (Ward Officer cannot reopen the case for making reassessment u/s. 35, merely at the instance of S. T. O. (Enforcement Branch).

  3. Stylish & Co.: (S.A. Nos. 774 to 778 of 1982, dated 21-11-1984): Notice for reassessment issued in the trade name without mentioning heirs of deceased is not a valid notice.

  4. Takwani Metal Industries: (S.A. No. 706, dated 13-3-1981): Entries in the books of account of third party are required to be proved by the Department by necessary material before reassessment u/s. 35 is started.

  5. Dadhichi Agency: (S.A. No. 673 of 1991, dated 31-1-1993): Reassessment on mere change of opinion was not justified.

  6. Nirman Construction P. Ltd.: (S.A. No. 1066 of 1991, dated 26-11-1993): Information received for the purpose of Section 35 could not be used unless substantiated by evidence.

  7. Raj Industrial Corpn.: (S.A. Nos. 697 and 698 of 1991, dated 6-8-1996): Reassessment on the basis of filing of revised return under the I.T. Act and on some unimportant loose papers was invalid.

  8. Vishwanath Limbraj Vaidya: (S.A. Nos. 1740 and 1741 of 1997, dated 21-7-2000): Original assessment u/s.33(2) — Reassessment held valid.

  9. New Haven Engg. Co. P. Ltd.: (S.A. Nos. 41 and 42 of 1995, dated 2-1-1999): Only in relation to assessed T. O., material de hors the record required for valid reassessment — In other cases, it was not so necessary.

10. Vijay Flexible Containers: (S.A. No. 802 of 1998 dated 21-4-2001): When the original order of assessment was under challenge before the higher appellate forum, initiation of reassessment was not necessary.

11. Shoe Bazar: (S.A. Nos. 950 to 956 of 1999, dated 5-5-2001)/Bherumal Shamdas: (S. A. No. 557 of 1996 dated 30-6-2001)/M. E. Metals India: (S.A. Nos. 382 and 383 of 1999, dated 29-9-2001)/Ketan Enterprise: (S. A. No. 1786 of 2002, dated 30-1-2004): Reason to believe for proper initiation has to be arrived at by the concerned office and no notice can be issued on the basis of letter from any other authority.

12. Sheth Masurkar Construction: (S.A. No. 2186 of 2001, dated 10-10-2003): When the order of assessment got merged in a revision order, the assessing authority cannot initiate reassessment proceedings.

13. Hindustan Breweries and Bottling Ltd.: (S.A. Nos. 2051 and 2052 of 2001, dated 25-4-2005): Proceedings for reassessment cannot be initiated in absence of any new material than what was available at the time of original assessment.

14. Dukes Retreat P. Ltd.: (S.A. 1041 to 1044 of 2006 dated 24-11-2006): Reassessment - Interest u/s. 36(3)(b) — Interest u/s. 36(3)(b) was restricted up to date of original assessment.

15. King Wine Shop: (S.A. 753 of 2006 dated 20-10-2007): Reassessment initiated on the basis of information from audit department held as bad in law.

16. Deepak Spices Export: (S.A. 1641 of 1994 dated 20-2-2008): Department failed to grant copies of material relied. Appellant having discharged the preliminary burden, burden shifted to the State to prove that the transaction is not consignment sale. No contrary proof produced by the Deptt. Reassessment made in gross violation of principal justice as no cross examination. Reassessment bad in law and unsustainable.

17. Vishwas Chemical Industries: (S.A. No. 209/04 dated 25-9-2009) (Larger Bench): Principles relating to reassessment explained exhaustively and held that mere change of opinion cannot lead to reassessment. Material de hors the record not always necessary.

18. S. P. Garments: (S.A. No. 423 of 2011, dated 6-2-2012): If the issue involved is attracted BST and CST law; then unless assessment under the CST Act is also reopened, assessment under the BST Act is unjustified.

19. Crescent Organics Pvt. Ltd: (S.A. Nos. 1210 to 1211 of 2002, dated 12-12-2011): The appellant had branch in Gujarat and H.O. in Mumbai. Sales was directly effected by the Gujarat branch to customers in Maharashtra and treated as inter-State sale for Gujarat Branch.

Sales Tax Department in Maharashtra after a visit of enforcement branch to H.O. at Mumbai passed a reassessment order holding the impugned transaction as intra-State as the bill was prepared from Mumbai. The Tribunal held that place of preparing a bill is relevant for deciding a transaction is intra-State or inter-State. And also held that for reassessment it is not a case of concealment to allow longer time.

20. Indian & Eastern Newspaper Society vs. C.I.T., New Delhi: (119 ITR 996 (S.C.)): Opinion expressed by the Audit wing of the Department on a law point is not information for the purpose of reassessment.

21. State of Gujarat vs. Kolithad Juth Sevadari Sah. Mandali Ltd.: (50 STC 375 (Guj.)): For the purpose of Section 35(1), if primary facts were produced in the original assessment and claim accordingly allowed, then a limit of five years applies and not eight years for reassessment.

22. Shaligram & Co. vs. Dy. C.S.T. (Guwahati): (95 STC 189 (Guwahati)): Power to call for and examine books of account cannot be utilised arbitrarily in respect of completed assessment. Unless proceedings are initiated under the Act, no books of account can be called for.

23. Natraj Rubber & Another vs. S.T.O.: (113 STC 575 (Guj.)): Reason to believe turnover escaped Assessment cannot be framed on the basis of belief held by somebody else who had conveyed satisfaction or correctness of objection by Audit. Reassessment notice held as illegal.

24. K. Mohan & Co. (Exports) vs. M. H. Vatnani, A.C. of S.T. & Ors.: (126 STC 126 (Bom.)): Longer limit of 8 years not applicable when proceedings initiated on the same evidence which was before Assessing Authority. No concealment or knowingly furnishing of inaccurate particulars of transaction relating to sale in the course of import which was allowed after application of mind by the Assessing Authority.

25. Ashok Leyland Ltd. vs. State of Tamil Nadu: (135 STC 473 (Mad.)): On production of Form F, claim of branch transfer allowed by Assessing Authorities could not be disturbed in reassessment proceedings by State authorities, as fiction created by Central law could not be overcome.

26. Binani Industries Limited vs. Assistant Commissioner of Commercial Taxes: (6 VST 783 (SC)): Reopening of an assessment is not permissible by mere change of the opinion of the assessing officer.

27. State of Kerala vs. Kurian Abraham: (13 VST 1 (SC) 2008): Circular of board of revenue binding on assessing authority. Reassessment based on High Court judgment contrary to circular not valid.

28. G. K. Chemicals: (13 VST 88 (Mad.) 2008): The assessing authority must furnish copies of documents on the basis of which the assessment was reopened and give opportunity to assessee to challenge those documents in accordance with law. The burden of proof cannot be shifted to establish the negative.

29. Ketan Enterprise and Another: (30 VST 356 (Bom) 2010): Reassessment notice u/s. 35(1) of BST Act, 1959 issued without any reasons recorded by AO in support of his decision was set aside. The Court also observed that since decision had been given on the basic issue holding erroneous assumption of jurisdiction by the AO, it is not necessary to examine the merits or demerits of the reassessment order. (Relied on: 36 Comp case 639 (SC) 1966).

Recovery

 1. Sharavathy Petrochemicals Ltd.: (Misc. Appl. No. 88 of 1992, dated 12-2-1993): S.T.O. could not recover the assessed dues if he had received intimation of stay from applicant's advocate, although the S. T. O. had not received his copy of stay order.

 2. Bharat Eng. Co.: (App. No. 125 of 2003, dated 30-7-2004): Order under section 62(a) can be passed only when there was actual transfer of assets. No such order can be passed for prohibiting a transfer.

 3. Ashokkumar & Another: (12 VST 120 (Pat.) 2008): Based on Section 5 of Companies Act it was held that sales tax dues of the company cannot be realised from directors and shareholders.

Rectification

 1. Bombay Telephones: (Rect. App. Nos. 55 to 62 of 1991, dated 13-8-1993): Order once rectified could be rectified on some other points, if not time-barred.

 2. Mahindra Ugine Steel Co. Ltd.: (Rect. Appln. No. 29 of 1997, dated 2-1-1999): Failure to consider provisions of law amounts to an apparent mistake.

 3. Delta Traders: (S.A. Nos. 996/997 of 1993, dated 27-2-1998): Department cannot file Misc. Application in the Second Appeal against the rectification order, for a point not covered by rectification order.

 4. 1. M. D. Enterprises: (S.A. Nos. 685 and 658A of 1997, dated 10-11-2000).

  2. Thakkar Purshottam: (S.A. No. 1595 of 1999, dated 10-2-2001).

 5. Jyotichand Bhaichand Saraf: (Rectification Appln. Nos. 23 and 24 of 1999, dated 31-8- 2002): Under the guise of rectification, view earlier taken on a highly-debatable question of law, cannot be reviewed.

 6. Dy. Comm. of S.T. vs. Nikhil Alloy Steel Pvt. Ltd.: (R.A. 31 of 95 dated 25-10-2005): Rectification - Statutory time limit — Deptt's rectification Application filed within two years was taken up for hearing after 2 years. Preliminary objection that since two years are already over Tribunal cannot pass any order on above application was negatived by Tribunal by holding that in case of suo motu rectification passing of order before two years is important. However in case where application is to be filed, if it is filed, order can be beyond two years.

 7. Mehra Jewellers: (S.A. 1055 & Other of 1997 dated 21-10-2005): The penalty matter was not dealt with by Tribunal in original S.A. order but in this Rectification proceedings the same was dealt with and set aside.

 8. Sudha Madhukar Pawar: (S.A. 950 of 2006 dated 3-11-2006): Rectification- Allowable as Remission of Interest not considered by MSTT [Sukhkarta Apartments R.A. 37 to 40 of 2002 dated 31-8-2005] - Appeal order - Registration officer sent a letter along with xerox copies of proceeding sheet informing that the application is filed Tribunal held that the meaning of filing of application is that application is rejected. Thus it is decision and appeal is maintainable against the same.

 9. Emmes Metal Industries Ltd.: (S.A. 357 of 2002 dated 22-9-2006): Credit for payment - Rectification Application filed after 5 years of assessment for giving credit of ₹ 1 lakh was held as valid as time limit of section 62 does not apply.

10. Bennett, Coleman & Co.: (S.A. Nos. 64 to 66 of 2006 dated 25-1-2007): No Rectification for withdrawing 46(A) deduction.

11. Hindustan Distillery: (RA Nos. 22 to 24 of 2007 dated 31-12-2007): Claim of set off under Rule 42AC made first time in rectification allowed as it was the duty of authority to grant due set off.

12. U. S. V. Ltd. (S. A. No. 359 of 2011 dated 10- 9-2012) - Sale of 'Dossiers' allowed as export in assessment. On receipt of audit note, it was taxed as local sale of technical know-how. Action amounts to change of opinion and rectification not possible.

13. Bajaj Auto Ltd.: (Rect. Appln. Nos. 168 &169 of 2009 dated 16-10-2014) - Held that if judgments cited but not considered by the Tribunal, rectification is possible. If judgments not cited, rectification cannot be made.

14. C.I.T. vs. Keshri Metal Pvt. Ltd.: (237 ITR 165 (S.C.)): The condition precedent for rectification is that the mistake must be apparent from the record, and for that purpose, reference to documents outside the record is not permissible.

15. Comm. of Sales Tax vs. M.S.T.T. & Ors. and Bharat Petroleum Corp. Ltd. vs. State of Maharashtra & Ors.: (137 STC 1 (Bom.)): The action of the Tribunal in recalling its order passed without hearing the third party affected by the order, approved by the High Court.

16. Entertainment Officer vs. High Tech Theatre: (12 VST 573 (SC) 2008): Genuine mistake committed by officer in computation should be allowed to be rectified.

17. Honda Siel Power Products: (12 VST 500 (SC) 2008): Failure of Tribunal to consider decision of Co-ordinate Bench cited by assessee is mistake. Words 'mistake', 'rectification' explained. When prejudice is caused due to mistake then it is duty of Tribunal to set it right, this has nothing to do with the concept of inherent power of review.

18. Assam Tea Brokers Pvt. Ltd.: (8 VST 621 (Guwahati) 2007): Suo motu rectification beyond the period prescribed cannot be sustained in law and in facts though notice was issued within the time limit sanctioned.

19. CST, UP vs. Sukhlal Ice and Cold Storage Co.: (16 VST 581 (All.)): In suo motu rectification, order must be passed within the limitation period. In rectification upon application by dealer, order may be passed beyond this period.

20. H Tech Theatre: (12 VST 573 (SC) 2008): Officer has power to rectify mistake in the interest of justice as he was not aware of the upgrading of Municipality while calculating Entertainment tax under Andhra Pradesh

Entertainment Tax Act, 1939. It was held that since a genuine mistake was committed by the officer in the computation of tax and the respondent had not brought the fact to the notice of officer, order can be rectified.

Refund

 1. R. P. Electricals (P) Ltd.: (Appeal Nos. 82 and 83 of 1990, dated 25-7-1991): Withholding of refund u/s. 44B without giving a hearing to the party was bad in law and against rules of natural justice. Judgment also followed in Devidayal Rolling Mill (S.A. Nos. 1105 to 1107 of 1991, dated 19-11-1992).

 2. Girnar Tea: (Appeal No. 15 of 1993, dated 27-12-1993): Order passed u/s. 44B without granting hearing and without any proceedings pending in respect of the same period under the Act was illegal.

 3. Fifth Season: (S.A. No. 128 of 1999, dated 20-2-2001): Held, unless reimbursement of tax was proved, provisions of section 43(3) relating to bar on refund could not apply.

 4. M/s. Maharashtra Steels: (Appeal No. 105 of 1998 dated 4-2-2006): Refund Withholding u/s. 44B(1) of the BST Act. — The Commissioner can withhold the refund arising in an assessment year only if any proceeding is pending in the context of an order giving rise to the refund.

 5. Bombay Sales Corporation: (R.A. 11 of 2006 dated 30-11-2006) (In S.A. 1186 of 94 dated 30-11-2006): Rectification/Reference — Claim of sale in course of import disallowed. Appellant filed Rectification Application showing certain facts as not considered by Tribunal properly. The dispute was also raised for rate of tax on item involved. Rectification was rejected however reference filed by appellant allowed on the ground that it relates to appreciation of documents which is mixed question of fact and law.

 6. C.S.T. vs. Toshniwal Bros. Pvt. Ltd.: (S.T. Ref. No. 2 of 1979, dated 6-11-1984, Contributory Bombay High Court Judgments of 1985, page 113): If stay is granted by Appellate Authority, then subsequent refund as per the A.O. can't be adjusted/withheld against dues of the A.O. in appeal.

 7. U.P. Pollution Control Board and Ors. vs. Kanaria Industrial Ltd. and Ors.: (128 STC 26 (S.C.)): When the collection of tax itself was without the authority of law, refund can be directed under Art. 226 and cannot be denied simply because the amount becomes part of common fund of Government.

 8. Jayant Dyes & Chemical Co. vs. Dy. Comm. of Sales Tax, (Adm III) & Ors.: (136 STC 250 (Bom.)): Section 43 of the BST Act was applicable only when refund arose out of assessment or reassessment. As assessee cannot ask for refund on the basis of later favourable judgment in some other assessee's case.

 9. Gharda Chemicals Ltd: (14 VST 413 (Bom) 2008): Merely because revision was pending State Govt. would not be entitled to withhold refund amount. Assessee entitled to interest on refund u/s. 44A of BST Act. The moment Tribunal set aside the revision order and restore the assessment, assessee can claim interest on delayed refund after 90 days of A.O.

Refund Application: Time Limit

 1. M/s. Vaibhav Steel Corporation vs. Addl. Comm. of Sales Tax : (2014) 69 VST 460 (Bom): Amendment made on 21-4-2011 in Section 51(7) of the MVAT Act, 2002, reducing the time limit from 3 years to 18 months is clearly prospective and not retrospective. Time limit, therefore, applicable for the year 2009-10 is 3 years and not 18 months.

 2. Sanghvi Management Services Pvt. Ltd. (VAT S.A No. 56 of 2014 dated 13-7-2015) and Prasam Exports (VAT SA No. 215 of 2013 dt. 3-10-2016): If the return is shown in return, it should be process whether application for refund in Form 501 is filed or not for even if delayed.

Reference

 1. Trafalgar House Construction (India) Ltd.: (R.A. Nos. 17 &18 of 2004 dated 30-9-2005): Reference rejected since matter is remanded

 2. CST vs. Indotex Export House Pvt. Ltd.: [R.A. Nos. 31 & 32 of 2003 dated 26-6-2006] : Reference - Against rectification rejected as no legal issues discussed in rectification order.

 3. C.S.T. vs. Blue Chip Texfuel Ind. Ltd.: (R.A. Nos. 31 to 34 of 2004 dated 8-9-2005): Reference Rejected — It was held that the sales of appellant are not local sale but inter-State sales from Silvassa. As no question of law was involved. Tribunal rejected the reference.

 4. C.S.T. vs. Universal Starch Chem Allied Ltd.: (R.A. 7 of 2006 dated 5-5-2006): Reference - Rejected — Prospective effect granted to the DDQ order. Tribunal held that there are no substantial questions of law.

 5. C.S.T. vs. Taparia Tools Ltd.: (R.A.108 of 2006 dated 20-10-2006): Reference - Rejected — No reference against order arising out of remand as the questions raised are not arising out of the said judgment.

 6. The Commr. of Sales Tax, Maharashtra vs. Raymon Glues & Chemicals : (R.A. No.145 of 2006 in S.A. No. 102 of 1993 dated 22-2-2007): Reference - Rejected - The reference application is rejected where the question whether delivery challans issued by bank to the importer against airway bill are documents of title is already settled in the case of M/s B. M. Shah and company (142 STC 291 (Bom).

 7. State of Maharashtra vs. Jayshree Industries: (R.A. Nos. 24, 25 & 26 of 2004 dated 22-12- 2006. - Larger Bench): Reference - Maintainability - Single Application for more than one year - The issue was about maintainability of Reference for more than one year in one single application. Tribunal office gave three number of Reference Application. Larger Bench observed that when technical considerations and substantial justice are pitted against each other substantial justice should be given preference. Larger Bench held that the single application is maintainable for other two years also.

 8. C.S.T. vs. Raymon Glue : (R. A. 145/06 dated 22-2-2007): Issue settled by Bombay High Court no reference can be allowed.

 9. Amines Plasticizers Ltd.: (R. A. 16/98 dated 22-6-2007 LB): Settlement of law by High Court before reference hearing, Ref rejected but Deptt directed to give relief as per Bombay High Court orders.

 10. Lilavati Hospital: (Misc. App. 37/2008 dated 30-4-2008): One single Reference Application by the State against two respondent dealers was not maintainable even where both were decided by Tribunal by a common judgment for both the appeals.

 11. CST vs. N. H. Polymers: (13 VST 73 (Bom.) 2008): Condonation of delay - High Court has no power to condone delay in filing reference application against the refusal of Tribunal to state the case.

 12. Singh Enterprise: (12 VST 542 (SC) 2008): Delay in filing appeal cannot be condoned by Court beyond the extended period provided in the statute.

 13. Tata Iron & Steel Co. Ltd.: (17 VST 15 (Bom) 2008): Reference application was made by the Commissioner of Sales Tax raising questions of laws and facts were identical to those raised in earlier applications pertaining to different assessment years. Earlier applications were dismissed by the Court and SLP against that order also dismissed by SC. And hence the reference application dismissed by Tribunal was not faulted.

Registration

 1. S. M. Garment Pvt. Ltd.: (S.A. No. 973 of 1990, dated 11-1-1991): When application for registration u/s. 7(2) of the C.S.T. Act was made along with application for R. C. under the B.S.T. Act., the date of effect of R. C. under the C.S.T. Act should be the same date as per R. C. under the B.S.T. Act and not from the date of application.

 2. Sonotono Electronics: (S.A. No. 206 of 1981, dated 21-1-1982): Import purchases not to be included for the purpose of calculating liability for registration purposes. Local purchase or sale was a must.

 3. Executive Engineer: M.S.E.B., Solapur: (S.A. No. 594 of 1997 dated 7-7-2001): A dealer is registered qua his business and not qua his place of business in the State of Maharashtra — Rule 7(3) of the BST Rules was not mandatory but was only directory in nature.

 4. Mehandi Traders: (S.A. No. 1600 of 2002, dated 22-8-2003): Ward Sales Tax Office cannot redetermine the date of liability when that was already fixed by the Registration Branch.

 5. State of Maharashtra vs. Suresh Trading Co.: (109 STC 439 (S.C.)): Cancellation of R. C. with retrospective effect cannot have binding effect on third parties. Resale claim allowed. 48 STC 207 (Bom.) Retrospective effect of Sec. 33C of the BST Act:

 6. National Organic Chemicals Inds. Ltd. & Anr. vs. State of Maharashtra: (135 STC 50 (Born.)): Effect of amalgamation of companies sanctioned by the Court in accordance with the provisions of the Companies Act, 1956 cannot be overcome by the State Legislature by giving retrospective effect. Retrospective effect of Section 33C held as ultra vires.

 7. Asahi India Glass Ltd. vs. State of Maharashtra: (25 VST 310 (Bom.)): Time for making registration application to be reckoned from date of order of court in case of amalgamation of companies where sanction of the court is given from an anterior date. Registration to be granted w.e.f. such anterior date.

Remission

 1. Sun Flag Iron & Steel Co.: (S.A. 1828 of 1998 dated 20-1-2007): Interest on account of retrospective insertion of explanation full remission granted.

 2. Skol Breweries Ltd.: (S.A. 1323/06 dated 9-2-2007): Fresh levy of interest amounts to rectification and cannot be allowed after 2 years.

Resale

 1. Iron & Steel Bogus Dealer: Bombay Iron Syndicate: (SA 833 of 2001 dated 7-12-2007): Reassessment made to disallow resale claim of B-6 goods held as bad in law as no formation and recording of reason to believe based on an objective material found. Initiation invalid. Mere allegation of not a genuine dealer but no material pointed out nor hearing granted held as bad in law. RC record and assessment record of the alleged non genuine dealer not produced. Iron & Steel cannot be taxed at more than one stage if any tax is leviable on the earlier transaction Appellant held as entitled to deduction u/s. 7(2) of BST Act. Reassessment set aside as bad.

 2. C. Tel. Infotech. Ltd.: (S.A. 1167-68/2001 dated 9-3-2007): Resale disallowed on the basis of letter from Enf. Br. invalid. Suresh Trading followed.

Resale claim

 1. Bharat Patel & Co.: (S.A. No. 896 of 1978, dated 6-7-1979): Affidavit of not doing genuine business could not be the sole ground for disallowing resale claim.

 2. Emel Art System: (S.A. No. 134 of 1981, dated 28-1-1993): Screen printing process on tiles does not amount to manufacture and resale claim was allowed.

 3. Jamnadas & Sons: (S.A. No. 1115 of 1985, dated 17-6-1988): No time limit u/s. 13 for resale. No. P.T. u/s.13 would be leviable, unless the possibility of goods being resold was destroyed.

  P. T. levied u/s.13 on car purchased from U.R.D. deleted (Applicable up to 31-3-1989).

 4. Excella Stores & Restaurant: (S. A. No. 1514 of 1992, dated 17-9-1994): Resale claim of empty bottles after consumption of beer allowed.

 5. R. Kishin & Co.: (Appl. No. 28 of 1997, dated 9-11-2001) (Larger Bench): Resale admissible in respect of purchase effected after an application for cancellation of RC was filed and before actual passing of the order of cancellation — Principles laid down in Suresh Trading Co. 48 STC 207 (Bom.) applied.

 6. Associated Cement Company Ltd.: (App. No. 170 of 1997, dated 11-10-2002) (Larger Bench): On the facts of the case, HDPE bags used for packing cement manufactured was held to be resold. Consequently, PT u/s. 13AA was also not attracted.

 7. Ujjawal Ispat P. Ltd.: (S.A. Nos. 1283/1284 of 1998, dated 6-4-2002): Coal purchased from RDs. Residue coal dust sold - Resale claim admissible.

 8. Maharashtra State Handloom Corporation Ltd.: (S.A. No. 614 of 1997, dated 26-9-2003): Resale claim in respect of old assets could be allowed on the basis of purchase entries in the books of account indicating purchase from a registered dealer in the course of business.

 9. Chokshi Vimal & Co.: (S.A. No. 2208 of 1998 dated 31-3-2006): Also Chokshi Maghaji Vanechand S.A. 1505 of 99 dated 31-3-2006. Resale disallowance - Enforcement matter - No copies of affidavits etc. supplied to appellant nor inspection of records and cross examination of parties given to appellant. Action is therefore against principles of natural justice. No provision in BST Act that dealer must sign in the same manner. Matter remanded with directions.

10. Paduka: (S.A. No. 446 of 2002 dated 9-8-2006): Resale - Footwear (1993-94) - Resale claim was disallowed on the ground that the purchases are from Cobbler Co-op. Society. Tribunal relied on judgment of Anar Kali Footwear (S.A. 2164 of 2001 dated 15-3-2005) and held that the footwear themselves were not u/e. A39 but they were exempt in hands of Co.op. Society. The footwear remained covered by Entry C-II-42 and accordingly entitled to resale.

Restoration

 1. Asian Power: (S.A. Nos. 1526 and 1527 of 1993, dated 21-9-1996): Application for restoration could be signed by an authorised representative.

 2. Vishwabharti Trading Co.: (Rect. Appln. Nos. 40 to 53 of 1988, dated 31-10-1988): A Restoration Application could not be dismissed for non-attendance ipso facto. It was required to be considered on merit.

Revision

 1. Ondez (India) Pvt. Ltd.: (R.A. No. 37 of 1975, dated 25-6-1984) (Larger Bench): The period of limitation applicable to a suo motu revision u/s. 57(1)(a) would be the period prevailing on the date of initiation of the assessment proceedings.

 2. Godbole Gates (Pvt) Ltd.: (S.A. Nos. 433 & 434 of 1986, dated 20-3-1987): When no order was passed by the S.T.O. to levy penalty, action u/s. 57 was held as bad in law.

 3. Monal Plastics & Chemicals (P) Ltd.: (S.A. Nos. 38 and 39 of 1991, dated 25-4-1993): No roving enquiry could be made prior to the issue of Notice in F-40. Previous order or subsequent order also could not be the basis for issue of F-40.

 4. M. M. Mehta & Co.: (S.A. No. 947 of 1991, dated 29-1-1993): Revision on the basis of Audit Note was not valid.

 5. Tejpuria Medical Stores: (S.A. No. 867 of 1991, dated 16-4-1993): Penalty u/s. 36(2)(c) Expl. I levied for the first time in revision which was not the subject matter of appeal — Action held invalid.

 6. Bombay Wire Ropes Ltd.: (S.A. No. 1288 of 1993, dated 16-2-1996): Once an order was revised u/s. 57 of the B.S.T. Act, it could not be subject to second revision by a co-ordinate Revisional Authority.

 7. Menon Pistons P. Ltd.: (S.A. No. 72 of 1993, dated 29-3-1997): The Revisional Authority could not pass an order u/s. 57 if appeal was already decided by an authority of equivalent designation.

 8. Jitendra K. Gadani: (S.A. No. 1633 of 1994, dated 22-12-2000): When matter pending before A.C. (App), revision order passed by the Assistant Commissioner of Sales Tax (Adm.) was held as invalid.

 9. Indian Pneumatic & Hydraulic Co.: (Appl. No. 90 of 2000, dated 12-10-2001): No revision order can be sustained on the basis of reasons not mentioned in the notice in Form 40.

10. Translektra Domestic Products Ltd.: (Appl. No. 104 of 1997, dated 15-6-2002): On account of non-preservation of records beyond five years, no adverse inference can be drawn. Period of ten years for preservation of records under the Companies Act have no bearing.

11. Parwani Builders: (S.A. Nos. 971 and 972 of 2003, dated 12-9-2003): When the order of assessment sought to be revised itself was barred by limitation, its revision would also be illegal.

12. Rema Reprographics: (Appl. No. 103 of 1993, dated 29-4-2004)/Royal Agencies: (Appl. Nos. 92 and 92A of 1999, dated 14-1-2005): When the appeal order sought to be revised, related only to remission of interest, the assessment of tax in order of assessment cannot be revised.

13. Siddhartha Fertichem Pvt. Ltd. vs. Asstt. Comm. Gandhidham & Anr.: (137 STC 58 (Guj.)): Limitation for revision by the Superior authority commences from the date of the order sought to be revised.

14. Indigo: (A-67 of 2006 dated 16-9-2006): Revision - Interest for first time — In assessment no interest u/s. 36(3)(b) was levied. Additional Commissioner of Sales Tax passed revision order levying interest u/s. 36(3)(b). Tribunal set aside the same on the ground that since there was no original order of interest u/s. 36(3)(b) no revision order is possible.

15. Midas Equipment: (S.A. Nos. 120 & 121 of 2002 dated 19-1-2007): Revision vis-à-vis Assessment u/s. 33(2): — The basic argument of appellant was that the assessment is u/s. 33(2) by accepting returns. The books were not examined to form part of the record. Tribunal concurring with appellant set aside the revision order following 99 STC 191.

16. Scenectady Beck (India) Ltd.: (A. Nos. 98 and 99/07 dated 6-11-2009) (Larger Bench): Revision order is an original order against which appeal can be filed under BST Act. Observations in BHC Judgment of M/s. Shiv Shyam Sales Enterprises distinguished.

17. Ajay Farm Mechanisation: (Appeal Nos. 9 & 10 of 2009 dated 14-9-2012) - Limitation for revision starts from the original assessment order and not from rectification order. Sanawad Co-op Society (55 STC 54) (Bom.) followed. Also refer, Duraware Pvt. Ltd. (S.A. 111 of 2007 dated 23-10-2012).

18. Champaklal Nanabhai vs. C.S.T.: (99 STC 190 (Bom.)): Power of revision u/s. 57(1)(a) is very wide and not hedged with any condition or limitation. 'Record of any order' is of wide importance and takes within its sweep not only the order passed or papers or materials in the file of the subordinate authority, but the entire evidence and documents which were before the subordinate authority at the time of passing the order which is subject matter of Revision. The Authority cannot go beyond the records and look into fresh evidence or material that had not been on record at the time of passing order.

19. RPG Life Science Ltd. vs. Commissioner of S.T., Gujarat: (124 STC 157): Disputed question decided by the O.C. to whom authority was delegated by the Commissioner. Order passed could not be revised by the Commissioner as the order was as good as passed by the Commissioner himself when it was unofficially approved by him before the passing of the order by the D.C.

20. Siddhartha Fertichem Pvt. Ltd. vs. Asstt. Comm. Gandhidham & Anr.: (137 STC 58 (Guj.)): Limitation for revision by the superior authority commences from the date of the order sought to be revised.

21. OCL India Ltd. vs. State of Orissa & Ors.: (130 STC 35 (S.C.)): Once the Asstt. Commissioner has exercised the delegated power of revision, it gets exhausted and thereafter, the Commissioner cannot revise the order over again.

22. Jayant Dyes & Chemical Co. vs. Dy. Commissioner of Sales Tax, (Adm. III) & Ors.: (136 STC 250 (Bom.)): An assessee has no locus to invoke SHR jurisdiction u/s. 57 of the B.S.T. Act, 1959.

23. Ghodawat Foods International Pvt. Ltd. vs. State of Maharashtra (App. Nos. 148 to 151 of 2012 dt. 3.5.2017): In assessment books not produced. Found in subsequent visit. Revision based on such record, held untenable.

Right of Cross Examination

 1. Tilagaraman Metal Wires vs. CCE (295 ELT 195) (Mad.) : It is held that even if the dealer has never submitted any explanation to show cause notice; still if any material/statement is relied upon, a right of cross examination crystallises.

 2. Mahalaxmi Cotton Ginning & Pressing & Oil Industries (VAT SA No.195 of 2015 dated 30.10.2017) : In case of allegation of hawala purchases, opportunity of cross examination should be given.

Returns

 1. Alkyl Amines Chemicals Ltd. (VAT S.A. Nos. 26-28 of 2012 dated 11-9-2012) - Monthly returns to be filed based on the total amount of tax liability and refund. Deptt. website showed quarterly returns and penalty levied u/s. 29(8) for not filing returns as per periodicity shown by the Deptt. Penalty set aside since no basis could be shown for quarterly periodicity on website.

Sale

 1. Ahmedabad Mfg. & Calico Printing Co. Ltd.: (S.A. No. 803 of 1991, dated 31-8-1995): Sale could not be said to have taken place when documents were not retired by buyers.

 2. Umrani Oil Mills: (S.A. No. 1605 of 1993, dated 15-2-1997): Transfer of immovable machinery along with other business assets was not a sale of goods under the B.S.T. Act.

 3. Herdillia Chemicals Ltd.: (S.A. No. 1826 of 1999, dated 31-10-2001): 'Sale and Lease back' was purely a financial arrangement and there was no sale. (Reference rejected vide RA No. 22 of 2002 dated 24-1-2003).

 4. Modern Pattern Works: (App. No. 59 of 1993, dated 9-11-2001) (Larger Bench): Supply of wooden and metallic patterns, manufactured as per design and specifications furnished by customers, amounts to sale within the meaning of Section 2(28) of the B.S.T. Act.

 5. Zincop Engravers (STR No.4 of 2008 dated 17- 2-2015)(BHC): Supply of printing blocks is sale and not works contract.

 6. B. T. Patil & Sons: (S.A. No. 328 of 2000, dated 12-10-2001): Supplies by contractee held to be sale following the Supreme Court judgment in the case of N. M. Goel.

 7. B. Vijay Kumar: (S.A. No. 482 of 2002, dated 31-12-2002): Cash incentive received from DGFT on cancellation of import licence does not amount to sale of licence for consideration.

 8. Lohia Cement: (S.A. Nos. 1497 and 1498 of 2002, dated 30-6-2003): When the goods were delivered, sale was complete. The date of issuing invoice has no relevance or bearing.

 9. Steel Beam Corporation: (S.A. No. 589 of 1998, dated 20-3-2004): Sale and purchase of motor car outside the State of Maharashtra cannot be taxed, simply because books were kept in Mumbai wherein depreciation was claimed.

10. Unique Diamonds P. Ltd.: (S.A. 237 of 2004 dated 31-1-2007): Sale-Cash Incentive against Licence - Receipt of incentive amount from DGFT due to fluctuation in the foreign currency held as not taxable as a sale.

11. Shri Gopal Rameshkumar: (S.A. 71 of 2002 dated 20-1-2007): Declaration under VDS under the Income-tax Act no purchase tax can be levied.

12. Color Chem.: (2189-90/03 dated 03-07-2007): The amount paid as remnant cost cannot be treated as sale of capital assets.

13. Dufar Interfran Ltd.: (S.A. No. 518 of 2000 dated 21-6-2008): Trademark 'Crocin' sold by an agreement executed at London. Held as sale of trademark within the State.

14. Parle Exports Ltd. (S.A. No. 984 of 2002 date 6-7-2012) - Agreement for sale of trade marks made in USA. Following 20th Century Finance Corporation (119 STC 182)(SC), Tribunal held it as sale outside India. Duphar Interfran Ltd. (A. No. 148 of 1998 and S.A. 518 of 2000 dated 21- 6-2008) distinguished.

15. The K. C. P Ltd. vs. State of A.P.: (88 STC 374 (A.P.)): Inter State branch transfers are not liable to tax.

16. C.S.T. vs. Steel Suppliers P. Ltd.: (98 STC 448 (Bom.)): The business closed prior to 1-7-1981 and the assets sold after 1-7-1981 held liable to tax under the Act. The tax is leviable not on closure of the business, but on the sale of taxable goods. The material event is sale and not the closure of busi- ness. The answer depends upon law applicable on that date. It is, therefore, the date of transaction which is material and not the date of closure.

17. United Breweries Ltd. vs. State of A.P.: (105 STC 177 (S.C.) 1997): Contract for sale of beer in bottles with a condition for refund of security deposit upon return of bottles is a contract of bailment and not sale of bottles.

18. C.S.T., Maharashtra vs. Mazgaon Dock Ltd.: 100 STC 57 (Bom.)/Hindustan Shipyard Ltd. vs. State of A.P: (119 STC 533 (S.C.)): Contract for building and supply of motor launch, as per specifications of buyer, was a contract of sale of goods and not a works contract.

19. Babu Litho Press vs. State of Tamil Nadu: (124 STC 663 (Mad.)): Sales of printed materials like cinema tickets, wall posters, etc. could not be a subject matter under the Sales Tax Act, but were to be treated as works contracts.

20. Food Corporation of India vs. State of Kerala: (105 STC 4 (S.C.)): Distribution of fertilisers to State Governments under Fertiliser (Control) Order was a sale.

21. Everest Copiers vs. State of Tamil Nadu: (103 STC 360 (S.C.)): Making of photostat copies with the use of Xerox machine or other copier machine was not a sale and was a contract for work and labour.

22. Cosmopolitan Club & Ors. vs. T. N. Taxation Spi. Tribunal: (127 STC 475 (Mad.)): After insertion of sub-clause (f) in Clause 29A of Article 366 of the Constitution, supply of food by an incorporated club to its members would also amount to sale and the doctrine of mutuality could not be invoked.

23. South India Tanners & Dealers Association: (135 STC 182 (TNTT)): Extended definition of sales under the Constitution shall cover both sales to incorporated as well as unincorporated association of members.

24. State of Andhra Pradesh vs. Jindal Strips Ltd.: (10 VST 777 (AP) 2007): Effect of amalgamation. Whatever sale of goods that took place between the subsidiary company and holding Company in the period between the sanctioned date of amalgamation and factual date of amalgamation by virtue of the fiction created under the law is only a transfer of stock of one branch to another.

25. Hindustan Club Ltd.: (10 VST 385 (WBH) 2007): Supply of food drinks and refreshment to permanent members of incorporated club is not a sale even within extended definition. Doctrine of mutuality applies.

26. Continental Builders and Developers vs. State of Karnataka: (14 VST 175 (Karn.)): Agreement for transfer of right to use the civic amenities is held as sale. Development charges liable to tax.

27. Idea Mobile Communication Ltd. vs. Commissioner of Central Excise and Customs, Kochi. (2011) 43 VST 1(SC): Value of SIM card included in the activation charges collected from a subscriber for providing cellular telephone services is part of services provided liable to service tax since the SIM card had no intrinsic value and no sale thereof could be contemplated.

28. Kirloskar Copland Ltd. STA-10 of 2012 dated 8-5-2014 (Bombay High Court): Against defective Compressor, dealer gave his own compressor and charged certain amount from customer. High Court has confirmed view of Tribunal that there is no sale under BST Act.

Sales in the course of export

 1. Natraj Jewellers: (S.A. Nos. 129 & 130 of 1989, dated 18-2-1993): Sales to passengers, by a duty-free shop, situated at Santacruz International Airport was a sale made in the course of export.

 2. Parksons Printer Ltd.: (S.A. No. 918 of 1999, dated 30-11-2000): On facts of the case, sale of packing pouches against Form H allowed.

 3. Thermoshell Ind.: (S.A. Nos. 1564 and 1565 of 1998, dated 6-5-2000): If sales did not qualify u/s.5(3) of the C.S.T. Act, liability to tax due to disallowance falls on the vendor and not on issuer of Form 14B/H. As export order details were not filled in the Form, Tribunal directed the Assessing Authority to summon the issuer for getting the required details.

 4. Boolani Eng. Corpn.: (S.A. No. 1046 of 2000, dated 31-1-2004): Form H issued by a dealer within the State is valid, sale covered by Section 5(3) of the C.S.T. Act. Form 14B is not mandatory. Rules under the C.S.T. would prevail over local rules.

 5. Mukeshkumar & Bros.: (S.A. 2278 of 2001 dated 7-4-2007): Sale in course of import vis- à-vis appeal under CST Act (Special Bench) — The High Seas sale claim of the appellant was disallowed and taxed under local law. Appeal filed under BST Act and not under C.S.T. Act. Tribunal held that when by disallowing claim tax is levied under BST Act, Appellant is justified in filing appeal under BST Act. No need to file appeal under CST Act.

 6. Adani Exports Ltd.: (Appeal No. 169 of 2003 dated 23-3-2007): Sale in course of import -unascertained goods: — Appellant imported goods, which were part of whole bulk in a ship. Bill of lading was for the quantity imported by him. Commissioner in DDQ held that the goods were not ascertained at the time of sale and hence sale under section 5(2) cannot be allowed. The Tribunal following Earlier SC, HC Judgments on also Vadilal Embroidery (dated 31-10-1991) and Tisco's case (9-10-2001) allowed the claim under section 5(2) of the C.S.T. Act.

 7. Mahalakshmi Glass Works: (Appeal No. 76 of 206 dated 12-7-2010): Claim of sale under section 5(3) against Form H allowed although name of the foreign buyer was not disclosed in the export order. Internal circular No. 18A of 2009 dated 18-8-2009 was referred.

 8. Gharda Chemicals: VAT A Nos. 169 &170 of 2014 dated 10-11-2014: Export order received till date of shipment is also valid for claim u/s. 5(3). Issue decided with reference to Exide Industries Ltd. (WP No. 12025 of 2012, dated 4-8-2014) (BHC), wherein meaning of 'sale' for section 5(3) is discussed.

 9. C. E. Ltd. vs. C.T.O.: (104 STC 94 (S.C.)): The purchase of tea by dealers at the auctions in fulfilment of the export obligations on the basis of contract between dealers of STC to the Iranian buyer, was the penultimate sale in the course of export. On the facts of the case, it was held that there was no sale between the dealers and STC.

 10. Satnam Overseas (Exports) vs. State of Haryana: (130 STC 107 (S.C.)): Paddy purchased but rice exported after conversion not admissible as penultimate purchase in the course of export u/s. 5(3) of the CST Act as paddy and rice were different commodities till 1996 when Section 15(ca) was introduced under the CST Act.

 11. Narang Hotels & Resorts P. Ltd.: (135 STC 289 (Bom.)): Supply of eatables to aircrafts for foreign destinations by Flight Kitchens was held as local sale as the eatables have no foreign destination. Further, sale is not by transfer of document of title before goods have crossed customs frontiers.

 12. State of Karnataka vs. Azad Coach Builders Pvt. Ltd.: (36 VST 1(SC): The Larger Bench of the SC in above case held that sale u/s. 5(3) allowable as a penultimate sale. The "same goods" theory has no application if sale is inextricably connected with export out of India.

 13. Deepmani vs. State of Maharashtra : (2011) 38 VST 275 (Bom): The sale of goods to foreign going passengers who are given delivery at international airport just before the customs area is not a sale in the course of export. The sale is complete when price is paid at the shop and goods are segregated. The delivery is only postponed. Sale does not occasion export.

 14. Commr. of Sale Tax, Maharashtra vs. Pure Helium (India) Ltd. (49 VST 14) : Sale of helium to ONGC on Bombay High is neither an inter-State sale nor a sale in the course of export. Bombay High is situated in exclusive economic zone which is not a territory of India. It is declared as part of Indian territory only for the purpose of Customs Act and hence, it cannot be construed as export sale.

 15. CTO vs. Kayson Metalic Corpn.: (14 VST 139 (All.) 2008): Orders obtained by Bombay Party from foreign purchasers and goods dispatched from Mathura dealer to Bombay party pursuant to order is sale in course of export.

 16. V. C. Kuganathan: (20 VST 835 (Mad.) 2009): Dealer had sold the Rights to exhibit films outside India and the AO had contended that they are not goods. Held that goods can be tangible or intangible and having attributes regarding its utility, capable of being bought or sold and also delivered. And hence rights to exhibit films constitutes sale of Goods and dealer is rightly entitled to claim the deduction under Section 80HHC of Income Tax Act, 1961. (Followed by [2004] 267 ITR 488 (Bom)).

Sale in the course of Import

 1. Stephen Commerce Pvt. Ltd.: (A. No. 20 of 2006 dated 30-6-2010): Claim of High Sea Sales from custom bonded warehouse allowed relying on M/s. Kiran Spinning Mills (1999) 113 ELT 753 (SC) and M/s. Radha Sons Industries (S.A. Nos. 1358 and 59 of 2003 dtd. 19-10-2007)

 2. Liberty Oil Mills Ltd.: (S.A. No. 28 of 2006 dated 13-9-2012) - Sale of imported oil from bonded warehouse was held as High Sea sales following Kiran Spinning Mills (113 ELT 753) (SC), State Trading Corporation of India (129 STC 294) (Mad) and Hotel Ashoka (ITDC) (Civil Appeal No. 2560/2010 dated 3-2-2012) disregarding Larger Bench decision in the case of Indo Tex Pvt. Ltd.

 3. Deputy Commissioner of S.T. vs. Indian Explosives Ltd.: (60 STC 310 (S.C.)): If the goods were imported on the basis of Actual User's Licence, specifying quantity and rate to the importer and the foreign supplier knew the actual buyer, then it was a sale in the course of import following K. G. Khosla's case.

 4. State of Maharashtra vs. EMBEE Corporation: (107 STC 196 (S.C.)): Foreign dealer shown as a supplier in the tender — Licence obtained on the import recommendation certificate issued by the D.G.S.D. — inspection of goods at Bombay port by the D.G.S.D. — Sales to D.G.S.D. by Indian dealer were sales in the course of import.

 5. State Trading Corporation of India Ltd.: (129 STC 294 (Mad.)) : 'Crossing of customs frontiers' takes place after clearance of goods from warehouse for home consumption upon payment of duty. Sales prior to this event would be in the course of import for the purpose of section 5(2) of the CST Act.

 6. Radha Sons International (64 GSTR 404)(Bom): Sale from bonded warehouse, not eligible as sale in course of import.

 7. B. M. Shah & Co.: (142 STC 291 (Bom.)): Endorsement of delivery order issued by the bank amounts to sale by transfer of documents of title to goods, and hence, sale was held to be in the course of import.

 8. Commissioner of Sales Tax, Mumbai vs. Tata Iron and Steel Co. Ltd.: (5 VST 137 (Bom.)): Letters of credit were issued by local buyer in favour of respondent and by respondent in favour of foreign supplier. Tribunal's finding of inextricable link between sale and import and holding sales exempt under first limb of section 5(2) held as proper on facts.

 9. Hotel Ashoka (Ind. Tour. Dev. Cor. Ltd.) vs. Asstt. Commr. of C.T. (48 VST 443)(SC) : Sale of goods from the duty free shop at airport is in the course of import.

10. Tata Iron & Steel Co Ltd.: (25 VST 27 (SC) 2009): Dealer has imported and sold to its Indian buyers certain items of Steel Iron and claimed that they were sales in course of Imports covered by Section 5(2) of the CST Act 1956. The question of law arises that the two contracts one between dealer and its Indian buyers and second between the dealer and the foreign seller were so inextricably linked so as to attract the first limb of abovementioned section. High Court also has to decide whether sales are covered by second limb of the section? Matter stands remitted to High Court.

11. Indure Ltd. and Others: (34 VST 509 (SC) 2010): Dealer is executing a Turnkey project wherein he imports the MS pipes to be used in the project and claims this purchase as Imports. Sale is in course of Import only if sale or purchase occasions such imports or is effected by transfer of documents of title before goods crosses customs frontier. Held that dealer can claim benefit of Section 5(2) of the CST Act, 1956. (Distinguished: 33 STC 254 (SC) 1974).

12. Commissioner, Delhi Value Added Tax vs. ABB Ltd. (91 VST 188)(SC): Works Contract sale covered by sale in course of import if goods imported are as per specification of customer.

Sale Price

 1. Albright Morarji & Pundit Ltd.: (S.A. No. 450 of 1991, dated 28-9-1992): Unless sale was ex- works, octroi formed part of sale price for levy of tax. Insurance charges, interest and stamp duty do not form part of sale price for levy of tax.

 2. Parle Products: (S.A. Nos. 935 to 937 of 1993, dated 7-7-1995): On the facts of the case, freight charges incurred by the dealer on behalf of the customer and recovered from him through invoice did not form part of sale price. View upheld in App. No. 154 of 1998, dated 12-10- 2001 (Larger Bench).

 3. Sabar Veg. Restaurant: (Appeal No. 97 of 1998, dated 8-1-1999): Price of papad, butter milk and farsan charged separately in invoice forms part of sale price of thali.

 4. Asea Brown Boveri Ltd.: (App. No. 15 of 1999, dated 6-4-2002): Excise duty not charged/chargeable and also not paid or payable by the buyer, but reimbursable by JCCI & E does not form part of sales price.

 5. Colgate Palmolive (India) Ltd.: (Factory Canteen) (S.A. Nos. 464/465 of 1997, dated 5-10-2002 (Larger Bench): Subsidy received by a canteen contractor from his employer would not form part of sale price, if the subsidy had no nexus to the food served.

 6. Indian Farmers Fertilizers Co-op. Ltd.: (A. 47 of 2000 dated 29-9-2006): Subsidy not liable to TOT as not part of sale price and subsidy is not part of sale price (Indian Farmers Fertiliser Co. Ltd. (A 70 of 1999 dated 31-5-2003).

 7. Jyoti Ceramics Ind. P. Ltd.: (S.A.1553 of 2001 dated 5-10-2005): Sale price - CST Act (1996-97) — Insurance charges, charged separately in relation to OMS bills were subjected to tax under CST Act. On the basis of the fact that it is recovered at flat rate, following the judgment in case of Bajaj Tempo Ltd. (S.A. 500 of 2000 dt. 29-9-2004) held that the insurance charges form part of sale price.

 8. TELCO: (S.A. 1589 of 2003 dated 27-10-2005): Sale price - Interest on Hire Purchase transaction (1997-98) — Tribunal held that since service tax is applicable on above charges, no tax can be levied under Sales Tax Laws and held that it is not part of sale price. In S.A. 812 & 813 of 2002 dated 30-3-2007, contrary view is taken. Issue before the Larger Bench vide S.A. 146 & 147 of 2007 dated 14-12-2007.

 9. Krisha Sah. Sakhar Karkhana Ltd.: (S.A. Nos. 1659 of 2000 dated 8-9-2006.): Sale price - Transport Pass Fees — Tribunal held that the transport pass fees is payable by buyer and hence it cannot be part of sale price.

10. Thysenkrupp Industrial India: (S.A. Nos. 2649-50 of 2003 dated 6-10-2007): Freight & Forwarding on facts were held as not forming part of the sale price.

11. ACC Ltd.: (S.A. 122 of 1995 dated 31-10-2007): Cash Discount & Quantity discount - discounts allowed as per agreement which goes to reduce sale price of seller is to be reduced from turnover of sale.

12. Godrej Appliances (Appeal Nos. 76 & 88 of 2007 dated 4-10-2012): Participation fees received towards maintenance contract wherein old parts were replaced with new parts (barter) is not consideration for contract.

13. Dy. Commissioner of S.T vs. McDowell Co. Ltd.: (46 STC 79 (Ker.)): Insurance charges were not liable to tax under the CST Act. (Also see M.S.T. Tribunal Judgment in S.A. No. 1515 of 1973, dated 11-7-1974).

14. East India Hotels Ltd. vs. State of Maharashtra: (99 STC 197 (Bom.)): In case of hotels, full amount charged for supply of food, was sale price. It was not possible to bifurcate the total amount between value of food and services rendered.

15. State of Maharashtra vs. Britannia Biscuit Co. Ltd.: (96 STC 642 (S.C.)): Deposits received for tins written off at the end of the year when such tins were not returned, were held as forming part of sale price.

16. Kalyani Breweries Ltd. vs. State of West Bengal: (107 STC 190 (S.C.)): Beer sold in bottles and price of bottles, kept as security deposit, was refunded on return of bottles, but no time limit was fixed for return of bottles. Amount of deposits forfeited for the bottles not returned forms part of sale price liable to tax. United Breweries Ltd. vs. State of A.P., 105 STC 177 (S.C.) distinguished.

17. Dy. Commr. of Comml. Taxes, Bangalore vs. Mysore Breweries Ltd. & Others: (109 STC 345 (S.C.)): Deposits collected for bottles and crates in which liquor was sold and returned ultimately do not form part of sale price.

Note: The decisions of Britannia Biscuits Co. Ltd. & Kalyani Breweries Ltd. cited supra stand reversed by implication.

18. Comm. of Sales Tax U.P. vs. India Aluminium Cables Ltd.: (115 STC 172 (S.C.)): Excise duty refunded to manufacturer under Central Govt. Scheme for granting assistance to exporters was not to be included in the taxable turnover.

19. State of Karnataka & Another vs. Bangalore Softdrinks Pvt. Ltd.: (117 STC 413 (S.C.)): Price of product fixed at rate applicable as per delivery at factory and transportation of goods under separate contract to buyers place. Reimbursement of freight by buyer did not form part of sale price.

20. Damodarswamy Naidu & Bros. vs. State of Tamil Nadu: (117 STC 1 (S.C.)): Composite charges recovered by residential hotels providing boarding & lodging could not be bifurcated, unless rules were framed by Govt. in this behalf. Levy of Sales Tax under supply of food & drink prior to 2nd Feb. 1983 in the State of Maharashtra was bad in law, as there was no such provision in the Sales Tax Act, which could be validated by Section 6 of the 46th Amendment Act.

21. EID Parry (India) Ltd. vs. Commissioner of C.T. & Ors.: (126 STC 112 (Mad.)): Subsidy received by a manufacturer of fertilisers from Govt. does not form part of sale price.

22. India Hotels Co. Ltd. vs. Dy. Commissioner of Commercial Taxes: (122 STC 50 (WBTT)): Export tax collected separately does not form part of sale price.

23. TISCO General Office Recreation Club: (126 STC 547 (S.C.)): Lump sum subsidy made by the company ex gratia cannot be regarded as part of sale price charged by the canteen to the employees of the company.

24. Bharat Sanchar Nigam Ltd.: (145 STC 91 (S.C.)): The Aspects theory can neither enable value of services to be included in sale price of goods for sales tax, nor the price of goods to be included in the value of services for levy of service tax i.e., No double taxation.

25. Chhabra Rice Mills: (Civil Appeal No. 14817 of 1996, dated 17-11-2005): The S.C. held that if market fee was the obligation of the buyer and the seller's liability was merely to collect and deposit the same, it would not form part of sale price.

26. State of Rajasthan and Another vs. Rajasthan Chemists Association: (147 STC 542 (SC)): Levy on MRP-Levy of tax on the manufacturer, wholesaler or distributor on the retail price of the goods was held as not legally sustainable. As it intended to levy tax on the first point of sale with reference to the price which could be charged in respect of a subsequent sale which had not come into existence at the time liability to tax arose.

27. Commissioner of Taxes, Guwahati and Others vs. Bongaigaon Refinery & Petrochemicals Ltd.: (147 STC 358 (SC)): Difference between ex-factory price and retention price received from oil pool account held as compensation or subsidy and not part of sale price.

28. SCCT Corpn. Div. vs. MRF Ltd.: (14 VST 124 (WBTT) 2008): The buyer was charged full list price with sales tax and surcharge.

Subsequently credit note issued to be adjusted against future purchase. This is not a trade discount and cannot be deducted from sale price. However discount when allowed on total price of purchase made during a quarter on credit sales is allowable and education from sale price if amount mentioned in invoice though not quantified and deducted at the time of sale.

29. India Meters Ltd. vs. State of Tamil Nadu: (34 VST 273 (SC)): Insurance and freight charges are part of sale price where seller is under obligation to transport goods to place of buyer both under local Act and CST Act.

30. Southern Motors vs. State of Karnataka (Civil Appeal Nos. 10955-10971 of 2016 dated 18-1- 2017): Credit notes issued subsequent to sale bills for discounts allowed.

Sale or Service

  1. Tamil Nadu Kalyana Mandapam Association vs. Union of India and Others: (1 VST 180 (SC)): The service provided by a mandap-keeper cannot possibly be termed as one under a hire purchase agreement of a right to use goods or property. The services provided by the mandap keeper are professional services which he alone by virtue of his experience has the wherewithal to provide. Similarly, the services rendered by outdoor caterers are professional services and cannot be said to be sale of food and drink. In such catering services the persons who participate and avail of the service give more importance to the manner of service than the quality of food provided for consumption.

Set-off

  1. Laljee Lakhamshi & Co.: (S.A. Nos. 1701 to 1703 of 2002 dated 5-10-2007): Set off under Rule 42H to be allowed of identification shown and not on Best Judgment basis. Working of the appellant ordered to be accepted.

  2. Desh Bhakta Ratnapa Kamba PSSSK: (S.A. No. 1384 of 2005 dated 31-12-2007): For the period 1999-2000 full set off to be allowed on paints used for maintenance of machine being at par with parts components of machinery. Pro rata set off for lubricant oil confirmed.

  3. Dukes & Sons: (S.A. Nos. 1794 to 1799 of 2000 dated 20-9-2007): Packing Material (Larger Bench) on facts packing material set off was granted without sale of packing material in view of Rule 41(D)(1)(ii)

  4. Sapat Packing Ind.: (S. A. Nos. 1031/03 dated 18-6-2007 L B): Set off u/r. 42H to be restricted to tax on material packed Sec. 15A applies.

  5. Madhur Agro Proteins Ltd. (S.A. No. 1084 of 2004 dated 8-10-2012) - Set off u/s. 42AC was reduced by 10% without giving any reasons. Reduction set aside.

  6. State of Maharashtra vs. Pulgaon Cotton Mills Ltd.: (85 STC 220 (S.C.)): Full set-off should be allowed to manufacturers where subsidiary product was turned out regularly from time to time and was sold. Full set-off allowed to manufacturer of main product.

  7. Tata Motors Ltd. vs. State of Mah.: (136 STC 1 (S.C.)): Retrospective amendment of Rule 41E denying set-off on scrap generated during the period 1-4-1984 to 31-3-1988 held as invalid being unreasonable. However, condition of registration under the CST Act at branch for grant of set-off was mandatory, and impossibility of performance due to the CST Act not being in force then at the branch, was not considered and set-off was denied.

  8. B. G. Shirke Construction Technologies (P) Limited vs. Addl. Commissioner of Commercial Taxes: (5 STC 655 (SC)): That the tower cranes could not be considered to be industrial inputs for use either as a component part or as raw material of any other goods, and, therefore, the appellant was not entitled to the concessional rate of tax under the notification.

  9. P. N. Gadgil vs. Commissioner of Sales Tax (36 VST 146) Set off u/r. 42-I allowable on the purchase of gold used in manufacture of exempted goods viz. mangalsutra which were inserted w.e.f. 1-5-1992 although purchase and use in manufacture was prior to amendment in view of the expression "for any period" used in the rule.

10. Mahalaxmi Cotton Ginning Pressing and Oil Industries, Kolhapur vs. State of Maharashtra (51 VST 1) (Bom): Section 48(5) is constitutionally valid. The State has given undertaking for the purpose of implementation of the said provision.

11. Rajpoot Supply Syndicate vs. Joint Commr. of Sales Tax (57 VST 197)(WBTT) — Goods lawfully purchased from Railways in auction. Release orders issued by Railways contained all ingredients of tax invoices. Input tax credit cannot be denied only for failure to furnish tax invoices. Dealer not to suffer for lapse of Railways.

12. Priyata Intercontinental (VAT SA No. 105 of 2013 dated 26-2-2015) & Priyadarshini Polysacks (VAT S.A. Nos. 158 & 159 of 2013 dated 3-8-2015): Set off eligible under MVAT Act on foundation work.

13. Arise India Ltd. (2018- VIL-01-SC): Held that failure of the seller should not result in disallowance of set-off to the buyer.

Set-off claim

 1. Fertiliser Corpn. of India Ltd.: (S.A. Nos. 152 to 158 of 1983, dated 22-12-1983): Full set off was admissible on spare parts and machineries, even though part of the goods manufactured were tax-free goods.

 2. Vinayak Sahakari Sakhar Karkhana Ltd.: (S.A. Nos. 1462 to 1465 of 1980, dated 18-2-1983): Set off u/r. 43AB — Set-off on machinery to be allowed in full and not on proportionate basis.

 3. Steel Co. Enterprise Manufacturing Company: (S.A. Nos. 707 and 708 of 1982 decided on 31-1-1994): For claiming set off u/r. 41A, it was not necessary that the whole process of manufacture should be done in Maharashtra (Applicable up to 30-11-1991).

 4. Kiran Spinning: (S.A. No. 1212 of 1984, dated 10-4-1985): Full set-off u/r. 41A on machinery purchases was available, although some proportion of goods manufactured were dispatched to branches outside the State.

 5. Universal Trading Company: (S.A. No. 79 of 1983, dated 15-1-1985): Mfg. and job work done — Scrap sold — Set off on furnace oil and stores was disallowed in proportion to job work. Held, full set off to be granted.

 6. Jain Farm Agencies: (S.A. No. 188 of 1987, dated 14-10-1987): Holder of Entitlement Certificate u/s. 136 of Notification was entitled to claim set-off under that Entry, even though they sold broken or sub-standard pipes. Not followed in Topaz Tiles S.A. 563 of 1997, dated 30-9-2000.

 7. Sudha Instant Soft Drinks & Essences: (S.A. No. 318 of 1985, dated 28-1-1988): Claim of set-off u/r. 41A on machinery can be granted in the year of purchase, though it is used in the manufacture of taxable goods in the next year, if it can be so proved before actual passing of assessment order. Also in Hi Mile Rubber P. Ltd. (S. A. 1353/54 of 1995, dated 21-7-2000), the same view was adopted in relation to Rule 41D.

 8. East India Commercial Traders: (S.A. No. 405 of 1991, dated 7-10-1991): Set-off u/r. 41D could be allowed at the option of the dealer, either in the year of purchase or in the year in which the raw material was used for manufacturing taxable goods for sale.

 9. A. Rafiq Ahmed & Co.: (S.A. Nos. 528 and 529 of 1986, dated 7-11-1985): Set off u/r. 43 could be allowed in case the goods were purchased by a branch in Maharashtra and were exported by the Head Office in Madras.

10. Savlar Paints Ltd.: (S.A. Nos. 999 to 1006 and 1555 and 1556 of 1993, dated 30-4-1994): Set- off claimed in returns could not be disallowed fully while assessing the dealer ex parte u/s. 33(4) of the B.S.T. Act, 1959.

11. Sulzer India Ltd.: (S.A. Nos. 1264 and 1265 of 2000, dated 25-10-2001): Set-off not admissible in respect of manufacture of spare parts given as replacement parts during warranty period, in the absence of evidence that original price charged contemplated such a contingency of replacement.

12. Bharat Bijlee Ltd.: (S.A. Nos. 741 and 742 of 1997, dated 3-11-2001): Set-off admissible u/r. 41D on computer installed at factory for processing and facilitating manufacturing activity.

13. Indian Oil Corporation Ltd.: (S.A. No. 1226 of 1995, dated 5-5-2001): Purchases attracting Sales Tax rate of 4% or less to be ignored while calculating set off u/r. 41D relating to branch transfer proportion.

14. Manganga Sahakari Sakhar Karkhana Ltd.: (S.A. Nos. 864 and 867 of 2000, dated 26-2- 2002): Held, set-off on paint and varnish used for maintaining the machinery admissible in full and on oils and lubricants used for running of the machinery on a proportionate basis, in case the process of manufacture results in manufacture of partly taxable and partly tax-free goods.

15. Hindustan Antibiotics Ltd.: (S.A. Nos. 216/217 of 2001, dated 7-9-2002): Free goods shown in sales bills along with goods sold were also held as sold and no disallowance of set off u/r. 41D was warranted.

16. Nandan Plastic (P) Ltd.: (S.A. No. 247 of 2002, dated 21-11-2003): Set-off u/r. 43(C)(2)(a)(ii) admissible on branch transfers of RD purchased used by branch in works contracts in other State after 46th Constitutional Amendment.

17. BMG Crescendo (India) P. Ltd.: (S.A. Nos. 86 to 89 of 2002, dated 31-5-2003): Set-off u/rs. 43C and 42H admissible on closing stock, if the same is sold in subsequent year within time limits prescribed, if any, by the time of assessment. Sudha Instant Soft Drinks & Essences — S.A. No. 318 of 1985, dated 28-1-1988 applied.

18. Selective Minerals: (S.A. No. 230 of 2002, dated 21-11-2003): Set-off under Rule 43C available for tax-paid packing materials were used in packing of goods exported. Implied sale thereof need not be proved.

19. Sapat Agropack: (S.A. No. 1000 of 2003, dated 30-4-2004): While considering set-off on packing material under Rule 42H, the restriction of the quantum not to exceed the tax paid have no application. That would be applicable to the main goods packed. This is averred by LB recently.

20. D. H. Shetkari S. S. K. Ltd.: (S.A. No. 1579 of 2003, dated 13-8-2004): Set-off Rule 41D available for taxes paid on paints used for painting of machinery.

21. R. P. G. Cables Ltd.: (S.A. Nos. 716 and 717 of 2003, dated 16-12-2004): Set-off under Rule 41D available for taxes paid on generator used for generation of electricity during load shedding.

22. Thermax Ltd.: (S.A. Nos. 1794/1795 of 1995, dated 10-11-2005) (Larger Bench): Set-off u/r. 41D is not admissible if goods are used in execution of works contract in Maharashtra.

23. Pudumjee Pulp & Paper Mills Ltd.: (S.A. No. 1961 of 2003, dated 30-9-2005) (Larger Bench): Retention of 6% applicable in case of fuel used in manufacture of goods that are transferred to branch outside Maharashtra.

24. Alkyl Amines Chemicals Ltd.: (S.A. No. 1553 of 2004, dated 20-9-2005): No reduction in set off u/r. 41D warranted on account of evaporation of material.

25. M/s. Veg Oil Ltd.: (Appeal No. 33 of 1998 dated 6-2-2006): Set-off u/s. 41D Proportionate allowance of set off on fuel oil etc. - To be applied to the extent of manufacture of non- taxable goods and not to the goods transferred to branch. BHC decision in appellants own case followed and not Larger Bench.

26. Bajaj Tempo Ltd.: (S.A. 49 of 2003 dated 26-8-2005 Set off u/r. 41D) (1994-95): Allowed on hand gloves used by workers.

27. Somaiya Organic Chemicals Ltd.: (S.A. 63 of 1999 dated 31-8-2005): Set off u/r. 41D - Burning Loss (1991-92) allowable.

28. Thermax Ltd.: (S.A. Nos. 1794 & 1795 of 1995 dated 10-11-2005): Set off on Works Contract under BST Act-Larger Bench - Larger Bench held that BST Act and Works Contract Act are separate enhancements. The reference to context will not allow travelling beyond the Act. Tribunal also noted definitions of 'sale' in the BST Act. Tribunal also noted the specific provisions in Lease Act etc. where set off of tax paid under BST Act is specifically allowed.

There is no such provision for allowing set off under Works Contract Act. Larger Bench held that the set off is not eligible and also confirmed the judgment in Dynacraft Engineering (S.A. 127 of 1998 dated 25-1-2002).

 29. Krisha Sah. Sakhar Karkhana Ltd.: (S.A.1659 of 2000 dated 8-9-2006): Set off - Rule 41D — Set off u/r. 41D was disallowed on the ground of self consumption. The appellant manufactured molasses, part of which was sold and part was used in manufacture of spirit. Part of spirit was sold and part spirit used in manufacture of liquor. Tribunal, set aside disallowance u/r. 41D.

30. Ajit Wire Industries Pvt. Ltd.: (S.A. 1467 of 2001 dated 20-10-2006): Set-off u/r. 41D - Separate Units: — On facts set-off claim by Mumbai unit for Machinery purchased at Nashik unit allowed.

31. Wine Enterprises: (S.A. 2043 of 2003 dated 2-3-2007): Set off u/r. 42L - on free items/closing stock (2000-01) — Appellant while selling showed cost of 12 bottles but reduced therefrom, price of 2 bottles, as free items. On reduced sale price tax was paid on sale side and hence on purchase side, correspondingly, set off was disallowed. Tribunal held that the items should be considered to be sold, cost being included in items actually sold, case of Arvind Mills Ltd. (S.A. 771 of 1991 dated 31-7-1993) relied on.

32. Sahibsingh Agencies Pvt Ltd.: (A. No. 160/04) & Mahendra Kumar & Co: (S. A. No 2127/03 dated 14-12-2009) (Larger Bench): set-off u/r. 42H not available when goods sold against F 14B.

33. S. Prakash & Brothers: (S. A. No. 323/06) and Karsandas Exports: (S. A. No. 1113/06 dated 5-9-2009): (Larger Bench) For the purpose of Rule 42AD, registration with Central Govt. is not necessary for 100% EOU. Nature of activity should be processing not amounting to manufacture under this rule.

34. Space Carburettors (India) Pvt. Ltd.: (S. A. No. 2633/03 dated 7-3-2008): Set-off u/r. 41D is allowable on the plant and machinery used in R&D. Gharda Chemicals (S. A. No. 1320/98 dated 16-3-2002) distinguished.

35. UTI Mutual Fund (VAT SA 100 to 102 of 2014 dated 22-9-2015): Receipts from all sources as a one entity are required to be considered for determining application of Rule 53(6) of the MVAT Rules.

36. Godrej and Boyce Mfg. Co. Ltd. VAT S.A. No. 136 of 2014 dated 2-7-2015: Wrong collection of tax at higher rate by vendor is eligible for set-off.

Sealed Containers

  1. Balkrishna Hatcheries vs. Clarification & Advance Ruling Authority (and another appeal)(148 STC 137(SC)): Eggs and meat including flesh of poultry except when sold in "sealed containers"—Dressed chicken—Stapling and crimping done only to facilitate easy carrying and to ensure dressed chicken does not slip out of bag—Not sealed container.

Sick Industrial Unit

  1. Vadilal Dairy International Ltd. vs. State of Maharashtra: (26 VST 530 (Bom.)): Action of the tribunal refusing to grant complete relief in interest and penalty ignoring rehabilitation scheme sanctioned by BIFR not justified Sales tax authorities bound by scheme sanctioned by board.

State's First Charge

  1. Thane Janata Sahakari Bank Ltd. vs. Commissioner of Sales Tax and Others: (148 TC 32 (Bom.)) (SLP granted by SC): The intention of the Legislature in enacting the 2002 Act is not to give precedence to dues of banks and financial institutions over statutory dues. Section 35 of the 2002 Act does not override section 38C of the Bombay Sales Tax Act and, therefore, based on section 35 of the 2002 Act, the bank does not get precedence or for that matter priority over the statutory first charge under section 38C of the Bombay Sales Tax Act. Rather the statutory first charge under section 38C of the Bombay Sales Tax Act has precedence over the bank's charge based on contract.

There will be change in ratio of above judgment. Refer to judgment in case of Assistant Commissioner (CT), Anna Salai-III- Assessment Circle, Chennai vs. Indian Overseas Bank and others (99 VST 222)(Mad)). In this judgment it is held that after amendment in Debt recovery law from 1-9-2016, secured creditors will have preference.

Stay-Granting of

 1. Kalyan Toll Infrastructure Ltd. vs. State of Maharashtra and Others : [(2013) 66 VST 44 (Bom)]:

    ♦  Whether a percentage of a penalty is required to be paid and

    ♦  Ground of financial difficulty

Penalty not normally to be included in deciding the sum to be deposited as condition for stay unless there is a prima facie strong reason.

Hardship of dealer for payment to be taken into account.

Taxability of Banquet halls

 1. Tip-Top Enterprises (VAT App No. 41 of 2009 dated 23-4-2013): In case of banquet halls, Tribunal has held that full amount charged is not taxable but a portion relating to food and drinks supply is liable to VAT.

Trademark

 1. Hasmukhrai & Co.: (DDQ - 1188/ADM- 5/139/305/B-14, dated 31-8-1990): Trademark means registered trademark for the purpose of Explanation to section 2(26) of the B.S.T. Act, 1959.

 2. Dawood & Co.: (Appeal No. 104 of 1995, dated 21-8-1998): Goods sold bearing trademark of others, resale admissible.

 3. Bajaj Electricals Ltd.: (S. A. No. 130 of 1999, dated 5-1-2002): Resale claims not admissible in respect of goods of which the seller was holder or licensed user of registered trademark and was entitled to use the same, although the trademark was not actually used.

 4. German Remedies Ltd.: (S.A. No. 1377 of 1997, dated 12-9-2003): Resale claim was admissible in respect of goods sold if (a) the seller did not hold trademark in respect of the 'goods sold', although he was a holder of some other trademark pertaining to similar class of goods and (b) the goods were not requested or ordered by reference to the specific trademark or trade description, if the seller had used his own trademark on the invoices, so as to be outside the coverage of Sec. 76(e) of the Trademarks and Merchandise Act,1958.

 5. Raj Oil Mills: (A 27 of 1992 & others dated 30-11-2006): Resale - Trade Mark - Sale in loose - Larger Bench — Dealer holds registered trademark for oil. He purchased oil from RD and sold it in loose, in tanks etc. Tribunal held that once the dealer holds trademark he cannot be entitled to resale in spite of not using the trademark.

 6. Voltas Ltd. : S.A. Nos. 1639 and 1640 of 2006, dated 22-7-2013: Appellant had purchased goods from other dealer and sold. Appellant had issued bills bearing his Trade Mark. However, in respect of goods sold, no trademark was held the Appellant. Tribunal held that if trademark in respect of goods sold is held then resale can be disallowed. Tribunal set asidedisallowance of resale.

 7. Merk KGa, Germany (SA Nos. 304 to 308 of 2011 dt.11.3.2015): Situs of lease sale of Trademark for deemed sales discussed.

Tribunal

 1. Pratap & Bros: (Export Divn.): (S.A. Nos. 638 and 639 of 1998, dated 25-10-2001) (Larger Bench): The Tribunal, being a creature of the Statute, could not ignore a statutory provision just because a similar provision in an enactment of another State was struck down by the Supreme Court. Uday Udyog: S.A. No. 229 of 1998, dated 7-11-1996 disapproved.

 2. Ajaykumar Mittal: (App. Nos. 8 and 9 of 1996 and S.A. No. 582 of 1997, dated 12-4-2002): The Tribunal, despite being a creature of the Statute, was constrained not to follow an amendment which sought to tax declared goods in violation of Constitutional restrictions. Pratap & Bros. cited supra was distinguished.

 3. Packwell Craft Industries: (S.A. Nos. 1697 and 1698 of 2004, dated 24-12-2004): The legal point about the order hit by limitation, though not taken up earlier, can be raised as additional ground. Such a point goes to the root of the matter.

 4. Everest Kanto Cylinders Ltd.: (MISC. 257/2006 dated 30-3-2007): When no time limit laid down in Act, Tribunal can give time limit for passing order while remand. Deptt. Misc. rejected.

 5. Mukeshkumar N. Brothers: (S.A. 2278/01 dated 7-4-2007 Spl. Bench): S.A. under only BST Act for disallowance of High Seas claim maintainable. Appeal not filed under C.S.T. Act no bar.

 6. ITAT vs. V. K. Agarwal: (235 ITR 175 (S.C.)): Tribunal was a Court for the purpose of the Contempt of Court Act.

 7. Nagpur Gas & Domestic Appliance vs. State of Maharashtra & Ors.: (139 STC 377 (Bom.)): When the later decision of a Bench was in favour of the assessee and that was not challenged by the Revenue, earlier decision by another Bench cannot be sustained. Later decision operates as res judicata.

 9. Bombay Electric Supply & Transport (BEST) Undertaking vs. State of Maharashtra: (140 STC 308 (Bom.)): While hearing an appeal u/s. 55(6)(C) [against determination u/s. 52]. The Tribunal cannot consider any other ground totally unconnected with the point raised in appeal by the assessee.

Unreasonable delay in passing the order

 1. Emco Ltd. vs. The Union of India and Others : Bombay High Court: W.P. No. 12124 of 2013, dated 11-2-2014. : Due to unreasonable delay of 9 months in passing the order by the Additional Commissioner of Central Excise, the order was set aside and directed him to pass fresh order after granting fresh opportunity of personal hearing.

Works Contract

 1. Painterior (India) Ltd.: (S.A. Nos. 1053 to 1056/06 dated 8-5-2009) (Larger Bench): Deduction similar to rule 46A of BST rules can be claimed where composition u/s. 6A of the erstwhile WCT Act is opted, can be claimed.

 2. Johny Joseph: (13 VST 64 (Ker.) 2008): Activity of taking photograph, developing and printing films constitutes works contract.

 3. ECE Industries Ltd.: (14 VST 40 (P&H) 2008): Sale or Works Contract: Based on the agreement the P&H High Court held that main object of installation of lifts was not for work and labour because lift transported in CKD condition. Installation was only incidental whereas in pith and substance it was sale of lifts.

 4. Orissa Small Industries Corporation Ltd. vs. State of Orissa: (23 VST 55 (Orissa)): Contract for supply of voters' photo identity cards to Chief Electoral Officer is not works contract or sale. Material used of negligible value and goods having no commercial value to any other person.

 5. Commr. of Sales Tax vs. Ramdas Sobhraj: (55 VST 420) (Bom.): Job work for plate making is works contract involving deemed sale of ink, lacquer and chemicals although plates are supplied by the customer.

 6. Anusuya Parida vs. Deputy Commissioner of Sales Tax, Salt Lake Charge And Others 83 VST 17 (WBTT): There is detailed discussion about various deductions from contract value towards labour and services.

 7. Painterior (India) (MVAT APP. No. 22 of 2017 dated 11-7-2017): Repair contracts are also construction contracts.

 8. Sai Construction (SA No. 375 of 2016 dated 31-8-2017): Held that under works contract there is separate sale of khadi, cement etc. even if used in form of concrete in the construction works contract.

 9. A. P. Processors vs. State of Haryana (57 GSTR 491)(P & H): Held that in works contract for dyeing of fabrics the material getting transferred is taxable and not all the materials put to use.

 10. Comfort Systems (64 GSTR 151)(All): Nature of inter state sale under Works contract discussed.

Works Contract TDS

 1. K.E.C. International Ltd.: (S.A. No. 2096 of 2003 dated 29-1-2010): Credit of TDS allowed during the year although certificates pertained to receipts towards earlier contracts. It was held that the condition in section 6B(5) of the WCT Act as regards adjustment of TDS against liability for a particular contract is directory and not mandatory.

 2. TDS deducted on CST works contract by Railways though contractor had paid CST on the materials supplied in the course of inter-State trade. Railways directed by High Court to refund the TDS wrongly deposited with a liberty to claim it back from the Govt.

 3. Rohini Industrial Electricals Ltd. (VAT SA No. 64 of 2014 dated 6-3-2017): Negative cross checks etc. cannot be applicable in case of TDS and credit is required to be given irrespective of defects on part of deductor.

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