KHANDELWAL FERRO ALLOYS LIMITED Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) IN this reference by the Sales Tax Tribunal at the instance of the assessee under section 61 (1)of the Bombay Sales Tax Act, 1959 ("the Act"), the following question is to be answered :

(2.) THE question arises against the following back-drop. The applicant, M/s. Khandelwal Ferro alloys Ltd. , Nagpur, was assessed by the Sales Tax Officer, Nagpur, for the period January 1, 1971 to December 31, 1971 on the turnover of Rs. 5,08,17,832 as sales in the course of inter-State trade and commerce under the provisions of the Central Sales Tax Act, 1956 ("the central Act"), vide order dated February 12, 1973, as rectified on April 25, 1973. This order was challenged by the assessee in an appeal under section 55 (1) (a) of the Act before the Assistant commissioner of Sales Tax (Appeals), Nagpur, on two grounds about incorrect inclusion in the turnover of sales of (i) railway freight charges to the tune of Rs. 9,85,352 and (ii) trade discount to the tune of Rs. 8,19,750. The Assistant Commissioner by order dated February 21, 1975, partly allowed the appeal upholding the ground about the wrongful inclusion of railway freight and repelling the ground relating to discount; as a result the assessable turnover was reduced by a sum of Rs. 9,85,352. Not fully satisfied by the relief granted in appeal, the assessee preferred a second appeal before the Tribunal under section 55 (2) of the Act for the relief of exclusion of discount from the turnover. The said appeal was allowed and the matter remanded to reconsider the question of discount afresh in the light of the observations made by the Tribunal (S. A. No. 543 of 1975 decided on February 27, 1976 ).

(3.) THE Deputy Commissioner of Sales Tax, Nagpur, purporting to exercise revisional jurisdiction vested in him under section 57 of the Act read with section 9 (2) of the Central Act, issued a notice dated February 3, 1978, in form 40 to the assessee to show cause as to why the order of the Assistant Commissioner dated February 21, 1975, excluding the railway freight charges from the sale price should not be revised. The assessee gave a reply justifying the order on merits, but also raising a legal objection to the jurisdiction of the Deputy Commissioner to revise the order of the Assistant Commissioner after passing of the order of the Tribunal dated february 27, 1976. The Deputy Commissioner overruled the legal objection and held against the assessee on merits. Aggrieved thereby the assessee filed an appeal before the Tribunal raising only a jurisdictional point. The Tribunal by order dated October 8, 1982, dismissed the said appeal. The present reference arises out of that order.