VISWANATHAM AND CO MADRAS Vs. STATE OF MADRAS

JUDGEMENT

(1.) THE matters in controversy in these two revision cases are the same, and therefore, a common judgement is pronounced in them. They relate to assessment years 1958-59 and 1959-60 respectively. The assessee is a firm that undertook the execution of electrical contracts for the Neiveli Lignite Corporation. They purchased some of their goods form outside the Madras State. In order to obtain a concessional rate of tax on the goods they have purchased, they had to give a declaration, and this declaration was embodied in the certificate of registration in form B that was issued to them, under Rule 5 of the Central Sales Tax Registration and Turnover Rules. In this form, it was specified that the goods, which they were buying from buyers outside the State, and in respect of which they had to give declaration, were intended to be (a) for resale, (b) for use in manufacture and (c)for use in the execution of contracts. This form of the certificate of registration was granted to the assessee, in accordance with the provisions of S. 8 sub-sec. (3) of the Central Sales Tax Act as it remained in force, before an amendment which was brought into effect form 1-10-1958, S. 8 (3) (b), before the amendment, read:

(2.) THE first point to be noticed in this case is that the dealer cannot be considered to have contravened S. 10 (d) of the Central Sales Tax Act of 1956. We have already refereed to the fact that the certificate of registration issued to him was in the form, which reproduced the terms of S. 8 (3) (b) before its amendment. Under that section, he would be in order, if he had utilised the goods he had purchased for execution of the contract only if a certificate of registration had been issued to him in a form which embodied the amendment to S. 8 (3) (b) with effect form 1-101958 could it be considered that, without reasonable excuse, he had failed to make use of the goods for nay of the purpose recorded in his certificate of registration. The departmental authorities did not take note of the fact that he certificate of registration is the new form had not been issued to the dealer. On the other hand, the dealer himself should have become aware of the necessity for obtaining a certificate of registration in the new form after 1-10-1958. But the consequence of his not having obtained certificate of registration in the proper form after 1-10-1958, might be different, but with that we are not now concerned. We are concerned here with the short point whether the dealer failed in terms to comply with the terms of the certificate, which had been issued in his case, and which, as we have already mentioned did not carry out the alteration brought about in S. 8 (3) (b) after its amendment. In this view of the matter, we are satisfied that this is not a proper case where the dealer should have been proceeded against for levy of penalty under S. 10-A for contravention of S. 10 (d) of the Central sales Tax Act. There was an argument urged faintly by the learned counsel for the petitioner that, even if the fulfilment of the petitioner's contract with the Neiveli lignite Corporation would in terms comply with S. 8 (3) (b) of the Central Sales Tax act, after its amendment, because, though not by himself, but indirectly through the Neiveli Lignite Corporation, he was engaged in a work involving the generation or distribution of electricity or some other form of power. But in the particular view we have taken of the obligation which flow form the certificate of registration, which was issued to the petitioner, and which alone was in force in his case during the two assessment years under consideration it is unnecessary to consider this aspect of the case.

(3.) LEARNED Government Pleader urged, as a point of law, that the order levying penalty in this case is not appealable. This point was not raised at any anterior stages but as a question of law which might affect jurisdiction, we permitted it tot be argued before us. The Central Sales Tax Act does not make any provision for a hierarchy of appellate and revisional tribunals to whom resort can be had for relief by an aggrieved person. By cross-reference in S. 9 of the Central Sales Tax Act, the appropriate authorities under the Sales Tax Act of the appropriate State have been constituted as the heirarchy of tribunals for assessing, collecting and enforcing payment of tax, penalty, etc, under the Central Sales Tax Act, and the corresponding provisions in the appropriate Sate enactment relating to returns, appeals, reviews, revisions, references, penalties and compounding of offences will apply accordingly. The contention of the learned Government Pleader is that the levy of penalty in this case would fall under S. 46 of the Madras General Sales Tax act, which says that the prescribed authority is reasonable suspected of having committed an offence against that Act, by way of composition of such offence (where the offence consists of failure to pay, or the evasion of any tax recoverable under the Act), in addition to the tax recoverable, whichever is greater, and, in other cases, a sum of money not exceeding in thousand rupees. The learned counsel for the petitioner draws my attention to S. 45 (2) (e) of the Madras General sales Tax Act which reads: