GLINDIA LTD Vs. STATE OF BIHAR

JUDGEMENT

(1.) The Commercial Taxes Tribunal, Bihar, Patna has made a reference under Section 48 of the Bihar Finance Act, 1981 with regard to an order dated 28.1.1989 passed in Revision case No. PT-30/88 arising out of the assessment of sales tax made on the petitioner by order dated 9.2.1983 under Section 17(2) of the Act, for the period 1978-79.

(2.) Admittedly, the petitioner was registered under the Bihar Sales Tax Act, and the assessment order was passed under Section 17 (2) of the Act, for the aforesaid period by the Deputy Commissioner of Commercial Taxes, Patna Special Circle, Patna.-Before the Assessing authority the applicant claimed exemption from payment of sales tax in course of export to Nepal for Rs. 41,68,042.29 and filed customs certificates of Nepal. After verification, the Assessing Officer allowed the claim. There was excess payment by the petitioner and as such he made a claim for refund of Rs. 53,899.88. Under the relevant provision, the matter was sent by the Deputy Commissioner of Commercial Taxes, Patna to the Joint Commissioner of Commercial Taxes, for counter signing. The Joint Commissioner wanted to look into the custom certificates but he did not find them on the assessment record nor the same were made available to him on demand and thereafter in exercise of suo motu power under Section 46(4) of the Act, he set aside the assessment order and remanded the matter to the Assessing Officer to decide the issue on admissibility of the claim afresh by order dated 12.10.1987. The applicant filed revision before the Commercial Taxes Tribunal, Bihar, Patna consisting of the Chairman and another member, The Chairman upheld the remand order whereas the Member of the Tribunal quashed the order of the Joint Commissioner of Commercial Taxes. However, the revision application was dismissed in accordance with the provisions contained in Rule 33(8) (a) of the Bihar Sales Tax Rules, 1983. The applicant, thereafter, filed a reference under Section 48, of the Act, before the Tribunal and after hearing the parties, the Tribunal by order dated 8.9.89 referred the following questions of law to this Court.

(3.) Learned counsel for the parties at the very outset submitted that the Tribunal has not framed the questions of law correctly. So far question of law No. 1 is concerned that does not raise any question of law which is to be answered by this court. So far question No. 2 is concerned, it is submitted that the same should be refrained with a view to bring out the real issue between the parties.