SATISH INDUSTRIES Vs. COMMISSIONER TRADE TAX

JUDGEMENT

(1.) Present three revisions under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") are directed against the order of Tribunal dated 7th November, 2005 relating to the assessment years. 1993-94. 1994-95 and 1995-96.

(2.) In all the aforesaid three assessment years, the applicant had disclosed the turnover of self-manufactured copper circles, which have been assessed to tax by the assessing authority at the rate of 2.5 percent. Assessing authority initiated the proceedings under Section 22 of the Act on the ground that the copper circle was liable to tax at the rate of 4 percent plus one percent surcharge under notification No. ST-II-191/X1-6 (9)-83-U.P. Act-XV/48-Order-90, dated 1.2.1990 and inadvertently, the tax on the manufactured copper circle was assessed to tax at the rate of 2.5 percent. In this regard, notices were issued to the applicant, but no reply was filed and. accordingly, assessing authority passed the orders under Section 22 of the Act and levied the tax at the rate of five percent on the turnover of self-manufactured copper circles. The orders of the assessing authority passed under Section 22 of the Act have been upheld in first appeals. Applicant filed second appeals before the Tribunal. Before the Tribunal, applicant appears to have pleaded that the item which was manufactured by mixing of copper scrap and Zinc scrap was copper Zinc based alloy sheets and circles and they were sold to the manufacturer of brassware and. therefore, the turnover was liable to tax at the rate of 2.5 percent under the Notification No. ST-II-1225/XI-9 (94)/91-U.P. Act 15/48-Order-92. dated 31.3.1992. at the rate of 2.5 percent. Tribunal appears to have entertained the submissions of the learned Counsel for the applicant and proceeded to examine the applicability of the actual rate of tax on the commodity and while examining the submissions of the learned Counsel for the applicant. Tribunal has gone to the extent by saying that the item manufactured by the applicant was not sold to the manufacturer of the brassware and they were liable to tax as an unclassified item. Tribunal held that the initiation of the proceeding under Section 22 of the Act was justified and remanded back the case to the first appellate authority to levy the tax on the turnover of copper brass sheets and circles and determine the rate of tax on the turnover of copper and brass circle in the light of the Notification No. ST-II-191/XI-6 (9)-83-U.P. Act-XV/48-Order-90. dated 1.2.1990 and in the light of the decisions of the Apex Court and the High Court in the case of Hindustan Aluminium Corporation Ltd. v. State of Uttar Pradesh and Anr. reported in 1981 UPTC 1249 and the decision of this Court in the case of Commissioner of Sales Tax v. S/S Vijay Aluminium Works, Kanpur reported in 1999 UPTC 1089.

(3.) Heard learned Counsel for the parties.