Pandian Roadways Corporation Ltd. vs State of Tamil Nadu

Bakthavatsalam, J.—This is an appeal filed by Pandian Roadways Corporation against an order passed by the Joint Commissioner suo

motu revising an order of the Appellate Assistant Commissioner, by exercising the power u/s 34 of the Tamil Nadu General Sales Tax Act, 1959

(hereinafter referred to as ""the Act"") and bringing into net of taxation of Rs. 6,66,226.50. The appellant was finally assessed on a total and taxable

turnover of Rs. 46,03,912 and Rs. 26,19,764, respectively, by the assessing officer for the assessment year 1978-79 by an order dated February

25, 1980. On appeal, the Appellate Assistant Commissioner, while upholding the assessment under the Tamil Nadu General Sales Tax Act had

remanded the appeal in respect of surcharge levied under the Tamil Nadu Additional Sales Tax Act, 1970 and the Tamil Nadu Sales Tax

(Surcharge) Act, 1971, for examination to find out the sales of iron and steel scrap which will not be liable to additional sales tax or surcharge in

view of the decision of this Court in State of Madras v. Raman & Co. [1974] 33 STC 1. On remand, the assessing officer has held that the goods

dealt with by the appellant-Corporation had to be treated as condemned machinery and liable to be taxed at 4 per cent and also u/s 3(1) of the

Tamil Nadu General Sales Tax Act, 1959 and are also liable to surcharge. This was taken on appeal to the Appellate Assistant Commissioner.

Before the first appellate authority, the assessee contended that it will not come under the definition of ""dealer"", and that the assessing officer failed

to make a distinction between iron and steel scraps and other scraps. A list of sales effected by the appellant/assessee to the effect of Rs.

6,66,226.50 as turnover was filed and the said list was ordered to be verified by the departmental representatives. The said statement was verified

by the departmental representative and found to be correct. The bills issued by the assessee were perused by the first appellate authority. The

Appellate Assistant Commissioner, in respect of a turnover of Rs. 6,66,226.50 came to the conclusion, that the appellant/assessee had sold only

iron and steel scrap, that the said scrap are liable to tax at 4 per cent u/s 4 of the Act and that the assessee is not liable to additional sales tax and

surcharge. So saying the Appellate Assistant Commissioner allowed the appeal in part.

This was taken by the Joint Commissioner in revision by exercising the power u/s 34 of the Act, 1959. The Joint Commissioner felt that the

commodity dealt with by the assessee will not come under any category of the items mentioned in serial No. 4 of the Second Schedule and that

worn out automobile parts cannot be treated as iron scrap. After issuing notice to the assessee and hearing the objections of the assessee, the Joint

Commissioner arrived at the conclusion that the assessee was selling concerned items of the automobile vehicles and as such it is ""dealer"" and

consequently held that in so far as the condemned articles are concerned, they were automobile parts and that the sale bills also will clearly show

the description of the goods sold. The Joint Commissioner has further held that in order to get exemption as second sales the assessee should

prove that the goods in question had suffered single point tax at previous stage and that the contention that the article made of iron and steel are

scrap is not acceptable as these are all the items relating to the spare parts or automobile parts. The appellant/assessee is before us questioning the

order bringing into the net of taxation a turnover of Rs. 6,66,226.50.

Mr. N. Sriprakash, the learned counsel appearing for the petitioner, contends that in so far as the question whether the appellant is a dealer or

not is decided against the appellant in Deputy Commissioner v. Cheran Transport Corporation Limited [1985] 59 STC 95 followed by another

decision in Deputy Commissioner v. Anamallais Bus Transport (P) Ltd. [1992] 84 STC 436 and as such the learned counsel for the assessee

restricted his arguments with regard to the second point as to whether the condemned parts sold by the assessee-Corporation is exempt from tax

as laid down by a Division Bench of this Court in State of Madras v. Raman & Co. [1974] 33 STC 1 and also in Deputy Commissioner of

Commercial Taxes v. R. Y. Nadar and Co. [1966] 17 STC 312. According to the learned counsel for the appellant/assessee, the

unserviceable/condemned parts sold as scrap, cannot be treated as automobile parts as they could not be used for any of the purposes shown in

serial No. 3 of the First Schedule and the condemned machinery were liable to tax at 4 per cent u/s 3(1) of the Act, 1959 and they have to be

exempt from tax. The learned counsel points out that the Joint Commissioner did not consider the findings of the first appellate authority that the

goods were sold in lots and by weight only and not by numbers. The learned counsel also drew our attention to the findings of the Joint

Commissioner stating that the articles are condemned articles. According to the learned counsel for the appellant, the Joint Commissioner has been

prejudiced because of the cash bills and the description of the goods sold whereas they were sold in lots and by weight and not by numbers.

Per contra, Mrs. Chitra Venkataraman, the learned Additional Government Pleader (Taxes), contends that the goods sold by the assessee will

come under entry 3 of the First Schedule to the Act, 1959, as ""spare parts"" of the motor vehicles, that the appellant/assessee has to prove that the

goods sold were only second sales and that the assessee has not proved so, in this case. According to the learned Additional Government Pleader

(Taxes), it has been taxed only u/s 3(1) of the Act at multi-point rate and as such the appellant/assessee can have no grievance at all. According to

the learned Additional Government Pleader (Taxes), the goods sold by the assessee cannot come under entry 4 of the Second Schedule of the

Act, as ""iron scrap"".

We have considered the arguments of Mr. N. Sriprakash, the learned counsel for the appellant/assessee and of Mrs. Chitra Venkataraman, the

learned Additional Government Pleader (Taxes) for the Revenue. We have gone through the files of the first appellate authority as well as the Joint

Commissioner. From the files, we are able to cull out that what was sold by the appellant was only by lots and weights. We find that the scrap

materials sold were on weight basis and the sale of condemned scrap motor vehicle parts, iron materials such as spring plates and engine parts.

This list has been verified by a departmental representative before the first appellate authority and he has granted relief. There cannot be any

dispute about it. So the only question to be decided in this case is whether the scraps sold by lots and weights will come under entry 4 of the

Second Schedule as ""iron scrap"", or have they to be treated as goods to be taxed at multi-point rate as contended by the learned Additional

Government Pleader, for the Revenue. We are of the view, that these goods cannot be brought under entry 3 of the First Schedule to the Act,

1959. In State of Madras v. Raman & Co. [1974] 33 STC 1 a Division Bench of this Court has held that any purchaser of such condemned

articles could not have entertained any idea of putting those articles to any further use. A reference to an unreported decision in T.C. No. 17 of

1964 has been referred to and in that case, certain condemned machineries which cannot be put to use had been sold which was claimed to be

scrap iron falling within the Second Schedule of the Act. In that case, it has been held that any condemned articles made of iron fall within the

description of iron scrap in item 4 of the Second Schedule. Though the question arose before the Division Bench of this Court in the case

mentioned supra was whether the goods sold in that case can come within the purview of item 23 in the First Schedule, in our view, the same

principle will apply to the peculiar facts of this case also. In this case it cannot be disputed that different descriptions of articles had been sold by

weight and there is ample evidence to show that bills were prepared accordingly. Simply because names of certain spare parts had been shown in

the bills, it cannot be assumed that what was sold is not iron scrap. After verification by the departmental representative, the first appellate

authority, has applied his mind, and came to the conclusion that what was sold was only iron scrap which will come under item 4 of the Second

Schedule of the Act. We are of the view that the Joint Commissioner has no other materials than the materials the Appellate Assistant

Commissioner had, to arrive at a different conclusion. It is well-settled that when the Joint Commissioner, exercising the power u/s 34 of the Act,

1959, he has to look at the question in an objective manner. In this case, the Joint Commissioner has proceeded with the question on mere

surmises and conjectures. So we are of the view that the order of the Joint Commissioner has to be set aside and accordingly it is set aside.

In so far as the other question, whether the appellant/assessee is a ""dealer"" or not is concerned, it is submitted by the learned counsel for the

petitioner that it is decided by this Court in [1985] 59 STC 95 (Deputy Commissioner v. Cheran Transport Corporation Limited) followed by

another decision in Deputy Commissioner v. Anamallais Bus Transport (P) Ltd. [1992] 84 STC 436 [to which one of us (Raju, J.) is a party]. In

the view we take, the tax case (appeal) shall stand allowed and the order of the Appellate Assistant Commissioner shall stand restored. However,

there will be no order as to costs.

Appeal allowed.