STATE OF GUJARAT Vs. ELECTRO PORCELAIN INDUSTRIES

JUDGEMENT

(1.) Heard Shri Siraj Gori, learned AGP for the State of Gujarat. Though served no one appeared for the respondent. M/s. Electro Porcelain Industries present opponent was a registered dealer manufacturing and selling Porcelain articles for using them in manufacturing electric switches and other insulators. For the Assessment Year 1976-77 the Sales-Tax Officer (for short "STO"), by his order dated 30.4.1979, assessed it to tax at the rate of 7 % under entry 42 in Schedule II, Part-A of the Gujarat Sales Tax Act, 1969 (for short "the Act") as it then stood. Thereafter, the present opponent had applied to the learned Commissioner of Sales-Tax u/s.62 of the Act for determining the tax payable by it in respect of porcelain and Insulator and other articles of porcelain sold by it. The Competent Authority i.e. Deputy Commissioner, Sales-Tax Department, u/s.62 of the Act, by his order dated 9.11.1981, held that the articles in question fell within the ambit of Entry 42, Schedule II, Part-A to the Act and that it was liable to pay tax at the rate of 7 % on the said articles.

(2.) It appears that after STO passed the assessment order on 30.4.1979 for the Assessment year 1976-77, the Office of the Accountant General raised audit objection regarding it and sent its audit note to the Sales-tax Department. On the basis of the said audit note STO issued notice in Form 45 to the assessee on 26.5.1980 calling upon it to appear with Accounts Books. Thereafter the record was transferred to the Assistant Commissioner of Sales-tax. The files were placed before the Assistant Commissioner, for the first time, on 14.11.1980 after a period of almost 3 years i.e on 12.10.1983 he issued notice in form No.49 to the assessee calling upon it to show cause as to why the assessment order dated 30.4.1979, passed by the STO should not be revised and why it should not be held that the said porcelain insulator were taxable under Entry 41 of Schedule II, Part-A of the Act. In response to the said Notice issued by the Assistant Commissioner, the assesee appeared before the Assistant Commissioner and raised two contentions, viz, (i) that the suo-motu revision was time barred, and (ii) that the very applicant's application made to the Dy. Commissioner u/s. 62 of the Act for determination of the rate of tax payable on the articles in question were decided by the Dy. Commissioner of Sales-tax on 9.11.1981 and it was held that the articles in question was covered by Entry 42, Schedule II, Part-A to the Act which relates to glassware, chinaware or articles made of porcelain and glazed earthenware. The said order dated 9.11.1981, passed by the competent Authority i.e Dy.

(3.) Commissioner of Sales-tax was not set aside by any higher Authority, as it was not challenged further by the department. Thus, it has become final in the case of assessee. Therefore, now it is not open to the authority to take up its case in suo-motu review.