COMMISSIONER TRADE TAX Vs. AJUDHIYA DISTTILLERY

JUDGEMENT

(1.) Present revision under Section 11 of the U.P. Trade Tax Act (hereinafter referred to as the "Act" ) is directed against the order of the Tribunal dated 6 th October, 1994 relating to the assessment year, 1982-83.

(2.) Dealer/opposite party (hereinafter referred to as "Dealer" ) was engaged in the business of Indian Made Foreign Liquor (hereinafter referred to as "IMFL" ). Books of account of the dealer was accepted and there is no dispute in this regard. The dispute relates to amount of excise duty amounting to Rs. 27,97,323/- for the period April, 1982 to December, 1982 paid by the purchaser as a part of the turnover or not The claim of the dealer was that in view of the Circular issued by the Excise Commissioner dated 19th March, 1982, business of IMFL has taken over by the State Government in his hands with effect from 1.4.1982 and the liquor which was to be sold to the Government, its price was to be informed, but the excise duty was not to be added. The claim of the dealer was that the liquor was sold by it to the Government ware-house and the State Government has further sold to the retailer and the retailer deposited the excise duty. Dealer was neither liable for excise duty nor recovered any amount towards excise duty nor deposited and, therefore, the amount of excise duty paid by the retailer would not be a part of the turnover. Assessing Authority has not accepted the claim of the dealer and added the amount of excise duty to the extent of Rs. 27,97,3237- for the period April, 1982 to December, 1982 in a taxable turnover. First appeal filed by the dealer was allowed and the alleged amount of excise duty has been held not the part of the turnover. Commissioner of Trade Tax filed appeal before the Tribunal, which has been rejected by the impugned order.

(3.) Tribunal held that an amendment was made with effect from 1.4.1982 by the Excise Commissioner in Section 41 of the U.P. Excise Act. According to amended Rules, manufacturer or importer of IMFL has to take licence and this licence has to be given to those dealers whose supply prices has been accepted by the department. It has been stated that a Circular was issued by the Excise Commissioner dated 19th March, 1982 by which the business of IMFL has been taken over by the State Government in its hand with effect from 1.4.1982 and the liquor which was to be sold to the Government its price was to be informed for which the excise duty was not to be added. Tribunal held in the present case that the goods in question have been sold by the dealer to the Government operated ware-house and the State Government further sold the goods to the retailers and the retailers in turn have deposited the excise duty directly to the Government Treasury and it was on the deposit of the excise duty, retailers drew respective quantity of liquor from the Government ware-house. On these facts, Tribunal held that the dealer was not liable for payment of excise duty under the Rules for the aforesaid period sand the dealer has not realised any excise duty from customer nor paid and, therefore, the amount of excise duty paid by the retailers directly in the Government Treasury would not be a part of the turnover.