Sri Varalakshmi Oil Refineries (P) Ltd. vs The Deputy Commercial Tax Officer

K. Raviraja Pandian, J.—The petitioner filed OP. No. 397 of 2003 before the Special Tribunal praying to call for the records from the file of the respondent relating to notice in TNGST 3620983/2002-2003 dated 28.03.2003 and set aside the same as illegal. That OP stands numbered as this writ petition on being transferred to the file of this Court.

Heard the learned Counsel on either side and perused the materials available on record.

What is put in issue is a notice dated 28.03.2003 issued by the assessing officer demanding a sum of Rs. 59,06,992/- from the petitioner on the ground that though the petitioner availed waiver of tax as per the agreement entered into, contrary to the agreement, the petitioner has started despatching the goods manufactured by it as consignment sale. Hence, the petitioner is not entitled to the sales tax deferral. The correctness of the notice is canvassed in this writ petition on the ground that on the interpretation of the notification, it could be seen that the benefit is available on the goods produced by the unit and not the way in which it was disposed off. The issue is settled by the Supreme Court in the cases of Hansraj Gordhandas Vs. H.H. Dave, Assistant Collector of Central Excise and Customs, Surat and Others, ; and Commercial Taxes Officer, Jodhpur Vs. Vishnu Metals, . A Division Bench of this Court also considered a similar issue in the case of Union of India v. Chemfab Alkalis Limited (2003) 129 STC 427 in which case incidentally I spoke for the Bench holding in favour of the assessee.

When the issue is admittedly covered, it is open to the petitioner to place the judgments referred to supra before the assessing officer and claim the benefit of the judgment. Accordingly, the petitioner is permitted to approach the assessing officer with the judgments referred to supra within two weeks from the date of receipt of a copy of this order. If the petitioner does so within the time granted by this Court, the assessing officer shall consider the judgments and find out whether the judgments cover the issue on hand on the facts and if that be so, grant the benefit to which the petitioner is entitled to. Till such exercise is made by the assessing officer, recovery proceedings are directed to be kept in abeyance. The writ petition is disposed off in the above terms. No costs.