M/S.Agarwal Oil Refinery Corp. Kanpur vs The Commnr.Of Trade Tax , U.P.,Lucknow

4. Admittedly, the first appeal, which was filed by the dealer against such assessment, was allowed and then again a further appeal was filed by the Commissioner of Trade Tax against the order of the first appellate authority. The said appeal by the Commissioner was also dismissed. Thereupon, the Commissioner, Trade Tax filed the revision before the High Court and the revisional Court overturned the concurrent finding of the statutory authorities. In doing so, the High Court came to a finding that the present controversy is covered by a decision of the High Court in the case of Commissioner of Sales Tax vs. S/S. Industrial Lubricants reported in 1984 U.P.T.C. 1101.

From the admitted facts recorded by the Tribunal it appears that the appellant-the dealer manufactures refined mobil oil from the raw material, i.e., the burnt mobil oil which it purchases and then sells a virtually new item in the market. In 1988-89 and 1989- 9 90 the assessments were made under Rule 41(7) of the U.P. Trade Tax Rules, but the said assessment has been opened and a fresh assessment has been made. Aggrieved by the same, the dealer preferred first appeal before the A.C.(J) who allowed both the appeals by an order dated 26.5.1995 holding therein that the dealer is not liable to pay and quashed the imposition of tax upon dealer for the relevant assessment years. Aggrieved thereby, the revenue preferred a second appeal before the Tribunal. Before the said appellate authority, the revenue urged that the burnt mobil oil which is purchased by the assessee who was the manufacturer of refined oil is taxable at the point of sale to the consumer as it comes under the category of old and discarded material. The Tribunal did not accept the said contention by examining the facts and the records of the case. The Tribunal came to the following finding:

(6-A)Where the Revising Authority or an Additional Revising Authority has, before the said date, allowed an application under sub-section (1) or sub-section (3), as they stood immediately before the said 5 date, and such authority has not made reference before the said date, it shall, as soon as may be, make reference, to the High Court. Every such reference, and every reference already made by such authority before the said date and pending before the High Court on the said date, shall be deemed to be an application for revision under this section and dispose of accordingly.

15. For the reasons afore-stated, we cannot sustain the order of the High Court. The order of the High Court is quashed.

16. We remand the matter to the High Court and request the High Court to decide the revisions on the facts of the present case on the principle of revisional jurisdiction indicated hereinabove. We hope that the High Court will come to a reasoned conclusion in the facts and circumstances of the case.

17. We further make it clear that we have not expressed any opinion on the merits of the finding recorded by the Tribunal since the High Court is to re-examine the same afresh. With these observations, the appeal is allowed and the matter is remanded to the High Court for a 1 fresh decision of the revision proceedings on the lines indicated above.

18. In the facts of the case, there will be no order as to costs.

S.L.P.(C) NO. 2148 OF 2008 Delay condoned.

We do not find any merit in the special leave petition, which is accordingly dismissed.

......................J [D.K. JAIN] .......................J [ASOK KUMAR GANGULY] NEW DELHI, August 10, 2011 1