IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.07.2009 CORAM: THE HONOURABLE MR. JUSTICE F.M. IBRAHIM KALIFULLA and THE HONOURABLE MR. JUSTICE B.RAJENDRAN Tax Case (Revision) No.2363 of 2008 The State of Tamilnadu rep. By the Deputy Commissioner of Commercial Taxes, Tiruchirappalli Division Tiruchirappalli. .. Petitioner vs. 1. Tvl. Shameem Traders 2/70-A, Main Road Gandarvakkottai. 2. Tvl. B.J.Abdul Mazeed Traders Marvuthankonviduthi Pudukkottai District. .. Respondents Tax Case Revision filed under Section 38 of the Tamil Nadu General Sales Tax Act, 1959, against the order of the Tamil Nadu Sales Tax Appellate Tribunal (Main Bench), Chennai, dated 31.10.2001 in S.T.A.Nos.1472, 1473, 1475 and 1484 of 2000 against the AP No.10/2000 dated 15.3.2000 on the file of Appellate Assistant Commissioner (CT) Thanjuvar against the TNGST No.4120852/95-96 dated 14.1.2000 on the file of Deputy Commercial Tax Officer,Pudukkottai-II and TNGSTNo.4120852/95-96 dated 28.2.97 on the file of Additional Deputy Commercial Tax Officer Pudukottai-II. For Petitioner : Mr.Haja Naziruddin Spl. Govt. Pleader for Taxes ---- O R D E R (Made by F.M. IBRAHIM KALIFULLA,J.) The Revenue has come forward with this revision challenging the https://hcservices.ecourts.gov.in/hcservices/ order of the Sales Tax Appellate Tribunal, dated 31.01.2001 in a batch of appeals. The question of law raised in this revision is as to whether in the facts and circumstances of the case, the Tribunal has erred in law by not treating pulpwood as timber falling under the Sixth schedule to the Tamil Nadu General Sales Tax Act, 1959. 2. The dispute involved in this revision relates to the sale of pulpwood by the assessee at concessional rate against Form XVII declaration, which would be available to the assessee only in respect of goods including consumables, packing materials and labels excluding plant and machinery, which are found in the First schedule. The Appellate Assistant Commissioner however held that nowhere in Section 3(3) of the Act, it is stated that the selling dealers' right to the benefit of Form XVII can be restricted to the goods mentioned in the First Schedule. According to the Appellate Assistant Commissioner, it is a buying dealer, who has to comply with the condition of using the raw materials purchased for manufacture of goods specified in the First Schedule for the benefit of usage of Form XVII. The Tribunal relied upon the decision of this Court reported in 102 STC 70 and held that a Selling Agent can sell any goods including consumables, packing materials and labels excluding plant and machinery and therefore, the order of the Appellate Assistant Commissioner was justified. Having perused Section 3(3) of the Act read along with second proviso, we are also convinced with the conclusion of the Appellate Assistant Commissioner as well as that of the Tribunal. 3. In order to appreciate the contention, Section 3(3) along with second proviso needs extraction, which reads as under: "3(3) Notwithstanding anything contained in sub- section (2), [(2-A) or (2-C),] but subject to the provisions of sub-section (1), the tax payable by a dealer in respect of sale of any goods including consumables, packing material and labels, but excluding plant and machinery, to another dealer for use by the latter in the manufacture, and assembling, packing or labeling in connection with such manufacture inside the State, for sale by him of any goods other than ethyl alcohol, absolute alcohol, methyl alcohol, rectified spirit, neutral spirit and denatured spirit, goods falling under Part A of the Third Schedule, goods falling under item 1 of the Sixth Schedule and arrack, shall be at the rate of only three per cent on the turnover relating to such sale: Provided ... Provided further that any dealer who, after purchasing the goods in respect of which he had furnished any declaration, fails to make use of the goods so purchased https://hcservices.ecourts.gov.in/hcservices/ for the purpose specified in the declaration but disposes of such goods in any other manner, shall pay the difference of tax payable on the turnover relating to sale of such goods at the rate prescribed and three per cent:" 4. A conjoint reading of the substantive provision contained in Section 3(3) along with the second proviso makes it clear that in the event of the purchaser committing any violation, the usage of the goods purchased from the selling dealer for manufacture of any goods not mentioned in the First Schedule, then the further tax liability could be fastened only on the purchasing dealer and the selling dealer cannot be levied tax for any such violation at the instance of the purchasing dealer. In this context, the provisions contained in Section 23, which provide levy of penalty, read along with Section 45 (2)(e) of the Act, also make it clear that in the event of violation of any costs by the purchasing dealer, he also would be liable to be proceeded against for imposition of penalty as well as for prosecution. 5. This very issue came up for consideration earlier and after referring to all the earlier decisions, the First Bench of this Court in the decision reported in 148 (2006) STC 419 (Sree Murugan Engineering Products vs. Commercial Tax Officer, Coimbatore), has held as under: "15. In the instant case, the issue involved is covered by several judgments of this Court and the Supreme Court and it has been consistently held that for the contravention of condition of Form XVII, tax and penalty could be imposed only against the purchasing dealer and not against the seller, as per Section 3(3) of the Act. Therefore, the impugned order of the assessing authority is clearly without jurisdiction." 6. For all the above stated reasons, we are not inclined to entertain this revision. The revision fails and the same is dismissed. No costs. ATR Sd/- Asst. Registrar /True Copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1.The Sales Tax Appellate Tribunal Main Branch Chennai. 2.The Deputy Commissioner of Commercial Taxes, Tiruchirappalli Division Tiruchirappalli. 3.The Appellate Assistant Commissioner (CT). 4.The Deputy Commercial Tax Officer, Pudukkottai-II. 5.The Additional Deputy Commercial Tax Officer, Pudukkottai-II. • + 1 cc to Special Government Pleader • High Court, Madras (RS 28360). T.C.(R) No.2363 of 2008 KS(CO) EU (15.7.2009). https://hcservices.ecourts.gov.in/hcservices/