HINDUSTAN LEVER LIMITED Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) BOTH these appeals have been filed by M/s. Hindustan Lever Limited, against the orders of the Appellate Deputy Commissioner (CT), Hyderabad Rural Division, Hyderabad. T.A. No. 104/01 pertains to assessment for the assessment year 1984 -85 and T.A. No. 103/01 pertains to penalty for the assessment year 1984 -85. The penalty has been levied in relation to the same turnover which has been appealed against in Appeal No. 104/01. In view of the above, these two appeals are being taken up together. The A.D.C., dismissed the appeal of the appellant against the orders of the Commercial Tax Officer, Hydernagar Circle, Hyderabad, dated 28.12.1988 passed in response to order of this Tribunal in T.A. Nos. 766 & 767/93, dated 18.3.1996. In fact, this Tribunal passed a common order for both the above mentioned matters with the following directions:

(2.) BEFORE the present Bench, the appellant has submitted that they did not want to press the point regarding purchases in the course of export. Their only argument is on a single point viz., that there was no purchase of catch from UCIL by HLL. According to them, the argument dated 12.10.1984 inadvertently refers to "Sale of Catch" in the subject matter and the actual intention of HLL was only to charter the Trawlers from UCIL for which they had agreed to pay certain fixed sum as well as other charges as indicated in Clause 8(a) & (b) of the Agreement. According to them, even in the Debit Notes raised by UCIL against HLL there was inadvertent mention of "Amount Payable for sale of Catch". They have submitted that this alone cannot be the basis for arriving at the conclusion that what has been charged in the Debit Notes is the price for purchase of Shrimp. The transactions should be seen in the light of the agreement arrived by them which was clearly for charter of trawlers and not for purchase of catch. Once the trawlers had been chartered by HLL the catch obtained by operating the trawlers belongs to HLL. Therefore, there was no question of the same being purchased from UCIL or purchase tax being paid on the same. They have also reiterated the arguments made before the first appellate authority regarding the fact that the C.T.O. did not issue any show cause notice to them before deciding the case and without indicating his intention of confirming the earlier orders, he passed an assessment order without any fresh consideration of the case as directed by this Tribunal. They have further argued that since the Department is making the assertion that the Debit Notes represent consideration towards sale of catch the burden of proof lies on the Department to prove the case. Further, they have also reiterated other assertions and submissions made before the first appellate authority.

(3.) FURTHER in his written submissions before us, the learned State Representative has brought to our notice the following facts.