JINDAL STRIPS LIMITED REP. BY ITS POWER OF ATTORNEY HOLDER SRI JAI PRAKASH AGARWAL, CHENNAI Vs. THE DEPUTY COMMERCIAL TAX OFFICER, MOORE MARKET (SOUTH) ASSESSMENT CIRCLE, CHENNAI,

JUDGEMENT

(1.) These two writ petitions, being W.P.Nos.18965 and 18966 of 1998 are having some peculiar facts.

(2.) The petitioner, the assessee herein purchased some goods from the Tamil Nadu Electricity Board (hereinafter referred to as the 'T.N.E.B.' for the sake of brevity), on his tender having been accepted on 10.7.1990. It is an admitted position that the goods, after being received, were despatched outside the State of Tamil Nadu, i.e., to Raigarh in the State of Madhya Pradesh. The petitioner/assessee then filed a return and was issued a pre -assessment notice in respect of the goods purchased by him from the T.N.E.B. and which goods were despatched outside the State. The assessee took an objection that the goods were exempted under the notification dated 1.11.1982 bearing G.O.Ps.No.1215, under which a blanket exemption was granted in respect of the tax payable under the Tamil Nadu General Sales Tax Act (in short the 'T.N.G.S.T. Act') on all sales of goods effected by the T.N.E.B. and its branches in the State of Tamil Nadu under Sec. 17(1) of the T.N.G.S.T. Act. This plea was not accepted by the assessing officer, who, finding that the goods were transferred outside the State, taxed the goods. In coming to this conclusion, the assessing officer also came to the conclusion that the goods were not iron scrap. But since they were purchased on 'As is where is' basis, it was a machinery (Turbine Alternator) which was purchased by the dealer which was falling under the entry in Sl.No.41D of the First Schedule of the T.N.G.S.T. Act.

(3.) The dealer then challenged the order of the assessing officer by way of an appeal before the Appellate Assistant Commissioner. He also took the same view that the goods sold were the machineries and were covered under Item 41D of the First Schedule. He also relied on the specific condition of the tender that where these goods are to be taken outside the State, the provisions of purchase tax would be applicable to the transaction. Taking this view, the appeal was dismissed. The matter was carried before the Sales Tax Appellate Tribunal, where also the petitioner lost the matter. The Tribunal by its order dated 3.9.1996, confirmed the earlier orders passed by the assessing officer as also the appellate authority. The appellate Tribunal also took the view that the provisions of Sec. 7 -A(1)(c) would be applicable to insofar as it pertained to the despatch of the goods made outside the State of Tamil Nadu in the relevant assessment year. The petitioner then kept quiet. On the basis of the order passed by the appellate Tribunal, the petitioner paid the whole tax found due against him on 30.5.1997. The matter had died its logical death.