IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03.07.2009 CORAM THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIAN and THE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJA W.P.Nos.6152 & 6153 of 2007 and M.P.Nos.1 of 2007 M/s Indo Shell Cast Private Ltd., No.A-9, SIDCO Industrial Estate, Coimbatore 21. ... Petitioner Vs. 1. The Tamil Nadu Sales Tax Appellate Tribunal (AB), rep. By its Secretary, Coimbatore 18. 2. The Additional Appellate Assistant Commissioner (CT) Coimbatore. 3. The Commercial Tax Officer, Podanur Assessment Circle, Coimbatore 18. .. Respondents Prayer: This Writ Petition is filed under Article 226 of the Constitution of India seeking for the relief of issuance of writ of certiorari to call for the records of the 1st respondent in CTSA Nos.22/2003 and 23/2003 respectively, quash the order dated 20.09.2006 made in relation to TNGST 1996-97 and 1997-98 respectively. For Petitioner : Mr.V.Ravindran for Mr.K.J.Chdnaran For Respondents: Mr.R.Tholgapian, SGP ORDER (Order of the Court was made by K.RAVIRAJA PANDIAN,J) These writ petitions are filed questioning the correctness of the order of the Tamil Nadu Sales Tax Appellate Tribunal, Additional Bench, Coimbatore made in five State Appeal Nos.22 to 24, 65 and 75 of 2003 filed against the order of the Additional https://hcservices.ecourts.gov.in/hcservices/ Appellate Assistant Commissioner, Coimbatore in Appeal Nos.1217/00 (96-97), 1016/01 (97-98), 1017/01 (98-99) dated 05.09.2002, 1209/00 (94-95) and 1208/00 (95-96) dated 31.12.2001. 2. The brief facts of the case are as follows:- (i)The respondent is a dealer and manufacture of Cast Iron rough castings. He is an assessee on the file of the Commercial Tax Officer, Podanur Circle. The assessee paid tax at the rate of 4% on their sale of certain specified goods under Entry 4(i) of the II Schedule of the TNGST Act claiming it to be declared goods. An inspection was carried out in the place of business of the assessee by the department, which revealed that the commodity sold by the assessee to certain specified customers were not rough castings, but patterns assessable at 8% as residual item classified under Entry 63 of Part D upto 16.07.1996 and at the rate of 11% under Entry 67 of Part D of the I Schedule with effect from 17.07.1996. The Assessing Officer therefore revised the assessment order for the year 1994-95, 1995-96, 1996-97 and 1997-98. For the assessment year 1998-99, regular assessment order has been passed assessing the goods at higher rate of tax as applicable as mentioned above. The Assessing Authority has also invoked the penal provision under section 16(2) of the Act in respect of assessments which were revised and Section 12(3)(b) in respect of the year where the original assessment was made. (ii) The assessee went on appeal before the Additional Appellate Commissioner, Coimbatore, who allowed the appeals by holding that Cast Iron Moulds or patterns dealt with by the assessee were only Rough and un-machined cast iron castings liable to tax at 4% under Entry 4(i) of the II Schedule of the TNGST Act. (iii) Thus as already stated, the State carried the matter on appeal to the Tribunal. The Tribunal, after taking into consideration of the records available, particularly the invoices unearthed from the office of the assessee, wherein it was found that the sale has been made to BHEL, Trichy, TVS Susuki, Hosur and other customers, goods were manufactured as per the description given by the purchaser. The goods supplied on different occasions were shown as Gear Wheel, Body Castings, Crank Shaft, Disc. Castings, Lever Castings, Body and Covers, Cleeves, Plug Covers, Levers, Bus Rods, Cylinders, Flywheels, Bearing Frames etc. and also on verification of the records such as Form XXIV, wherein also the same sort of goods as stated above has been entered upon. The Tribunal found that the goods had been sold on clear specifications or dimensions and measurements of minute nature with reference to the requirement of their customers and thus allowed the appeals. However, the penalty imposed under Sections 16(2) as well as 12(3) (b) of the Act were set aside by the Tribunal. The correctness of the same is now canvassed before us by filing these writ petitions. https://hcservices.ecourts.gov.in/hcservices/ 3. Mr.Ravindran, learned counsel for the assessee has placed much reliance upon the finding recorded by the Additional Appellate Assistant Commissioner in its order, wherein it is stated that the assessee have manufactured dies or patterns as per the specifications given by the customers out of the Cast Iron by the process of moulding the molten metal. The same goods have undergone no other mechanical process further and were delivered to the customers as such as moulds in rough form. But the said finding was reversed without any material whatsoever by the Tribunal, it is impermissible in law. 4. One more contention raised by Mr.Ravindran, learned counsel for the petitioner is that in respect of earlier assessment year, the order of the appellate authority has been accepted by the department. Hence, filing of appeal cannot be legally sustained. 5. On the other hand, the learned counsel appearing for the revenue submitted that the finding arrived at by the highest fact finding authority is final. The assessee cannot rely on the lower authority's finding as against the finding recorded by the highest fact finding authority. The Tribunal has also not given such a finding of fact without any basis or without any material. The sale bills issued to BHEL, Trichy and the invoice of the customers have been taken into consideration. On the basis of the requirement shown in the invoice and the sale bills, the Tribunal has recorded a finding that what was sold by the assessee to their customers is not in the rough form but machined and finished form. 6. We have heard the argument of Mr.Ravindran, learned counsel appearing for the assessee and Mr.Tholgappian, learned Special Government Pleader representing the revenue and perused the materials available on record. 7. The fact is that the cutomers of the assessee are BHEL, manufacturer of heavy electrical goods and TVS Suzuki, manufacturer of Two Wheelers and other manufacturers like that of them placed orders on the assessee for some parts i.e., components for the purpose of manufacturing their products in heavy electrical goods and T.V.S. Suzuki Motor Cycle. Instead of they themselves manufacturing those components, they give orders to the persons like that of the assessee and get the goods manufactured from them and used it in the manufacture of their product. If the contention of the assessee that what was sold to the customers is only the rough casting and rough mould and these mould must undergo further mechanical process of polishing and machining at the hands of the customers to suit the manufacturing activities of their product is correct, then, there is no necessity for them to give a purchase order to the persons like that of the assessee to get the materials in the rough form and further doing the exercise of making it suitable for the goods manufactured by themselves, then, they would have themselves manufacture these minor items in their plant. https://hcservices.ecourts.gov.in/hcservices/ 8. Apart from that, the invoice dated 25.03.1998 issued to the assessee's customers clearly gives the description of the goods as development and supply of pattern equipment including matchplate mounting, gating and modification of our existing core shooting die to suit our equipment, suitable for shell moulding of intermediate housing (drg.No.190098) – Manufacture and Die (2 cavity) and CAPST patterns – housing (Drg.No.606744)- Housing Drg.No.606745). From the invoice, it is evident that the goods are manufactured to the prescription of the purchaser. In addition to that the finding recorded by the Tribunal is that sales have been made to BHEL, Trichy, TVS, Suzuki, Hosur and other customers and the description of the goods supplied on different occasions has been shown as Gear Wheel, Body Castings, Crank Shaft, Disc. Castings, Lever Castings, Body and Covers, Cleeves, Plug Coves, Levers, Bus Rods, Cylinders, Flywheels, Bearing Frames etc. The Form XXIV as well as the sale bills available with the assessment file also revealed that the goods had been sold on with clear specifications of dimensions and measurements of minute nature with reference to the requirement of their customers. Thus it is manifestly shown that the goods supplied are finished products capable for immediate use. 9. When that being the factual position, in the light of the Judgment of the Supreme Court in the case of State of Tamil Nadu vs. Phyarelal Malhotra reported in 37 STC 319, and in the case of Vasantham Foundry vs. Union of India reported in 99 STC 87, which examined the difference between the cast iron and other finished products in the context of Entry 4 to II Schedule, and uniformly held that Cast Iron Casting in its basic or rough form must be held to be cast iron, but, if thereafter any machining or polishing or any other process is done to the rough cast iron casting to produce things like pipes, manhole covers or bends, these cannot be regarded as "cast iron castings" and cannot be treated as "declared goods" under Section 14(iv) of the CST Act, in as much as we have come to the conclusion that the goods supplied are to the prescribed specifications and dimensions and measurements of the purchaser for their immediate use in their manufacturing activity in all finished form, the one and only conclusion that could be arrived would be that the goods supplied by the assessee would not come within the purview of item 4(i) of the II Schedule to the TNGST Act. Hence, we are not able to take a different view than the one taken by the appellate Tribunal. 10. As regards the contention of the learned counsel for the petitioner regarding filing of appeal, despite the fact for earlier years the department accepted the contrary view, we are not able to concur with the argument of the learned counsel for the petitioner as the issue is well settled that each assessment year is a unit by itself and non filing of appeal in respect of one assessment year cannot be a bar or cannot prevent the State from filing an appeal in respect of other assessment year (Vide BSNL vs. Union of India 2006 (3) SCC 1). https://hcservices.ecourts.gov.in/hcservices/ 11. The writ petitions deserve dismissal and as such they are dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petitions are also dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rg To 1. The Secretary, The Tamil Nadu Sales Tax Appellate Tribunal (AB), Coimbatore 18. 2. The Additional Appellate Assistant Commissioner (CT) Coimbatore. 3. The Commercial Tax Officer, Podanur Assessment Circle, Coimbatore 18. 1 cc To Mr.J.Chandran, Advocate, SR.28394. 1 cc To The Special Government Pleader (Taxes), SR.28362. W.P.Nos.6152 & 6153 of 2007 https://hcservices.ecourts.gov.in/hcservices/