CENTRAL SALES TAX ACT, 1956

[74 OF 1956]

(As amended by Finance Bill, 2005)

 

An Act to formulate principles for determining when a sale or purchase of goods takes place in the course of inter‑State trade or commerce or outside a State or in the course of imports into or export from India, to provide for the levy, collection and distribution of taxes on sales of goods in the course of inter‑State trade or commerce and to declare certain goods to be of special importance in inter‑State trade or commerce and specify the restrictions and conditions to which State laws imposing taxes on the sale or purchase of such goods of special importance shall be subject :

 

Be it enacted by Parliament in Seventh Year of Republic of India as follows:

 

PRELIMINARY

 

1.         Short title, extent and commencement

 

(1)        This Act may be called the Central Sales Tax Act, 1956.

(2)        It extends to the whole of India [* * *].

(3)        It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint, and different dates may be appointed for different provisions of this Act.

 

2.         Definitions

 

In this Act, unless the context otherwise requires,-

 

(a)        "appropriate State" means­-

(i)         in relation to a dealer who has one or more places of business situate in the same State, that State;

(ii)        in relation to a dealer who has places of business situate in different States, every such State with respect to the place or places of business situate within its territory;

 

(aa)      "business" includes­-

(i)         any trade, commerce or manufacture, or any adventure or concern in the nature of trade, commerce or manufacture, whether or not such trade, commerce, manufacture, adventure or concern is carried on with a motive to make gain or profit and whether or not any gain or profit accrues from such trade, commerce, manufacture, adventure or concern; and

(ii)        any transaction in connection with, or incidental or ancillary to, such trade, commerce, manufacture, adventure or concern;

 

(ab)      "crossing the customs frontiers of India" means crossing the limits of the area of a customs station in which imported goods or export goods are ordinarily kept before clearance by customs authorities.

 

Explanation: For the purposes of this clause, "customs station" and "customs authorities," shall have the same meanings as in the Customs Act, 1962 (52 of 1962);

 

(b)        "dealer" means any person who carries on (whether regularly or otherwise) the business of buying, selling, supplying or distributing goods, directly or indirectly, for cash, or for deferred payment, or for commission, remuneration or other valuable consideration, and includes­-

(i)         a local authority, a body corporate, a company, any co‑operative society or other society, club, firm, Hindu undivided family or other association of persons which carries on such business.

(ii)        a factor, broker, commission agent, delcredere agent, or any other mercantile agent, by whatever name called, and whether of the same description as hereinbefore mentioned or not, who carries on the business of buying, selling, supplying or distributing goods belonging to any principal whether disclosed or not; and

(iii)       an auctioneer who carries on the business of selling or auctioning goods belonging to any principal, whether disclosed or not and whether the offer of the intending purchaser is accepted by him or by the principal or a nominee of the principal.

 

Explanation I: Every person who acts as an agent, in any State, of a dealer residing outside that State and buys, sells, supplies, or distributes, goods in the State or acts on behalf of such dealer as-

(i)         a mercantile agent as defined in the Sale of Goods Act, 1930 (3 of 1930), or

(ii)        an agent for handling of goods or documents of title relating to goods, or

(iii)       an agent for the collection or the payment of the sale price of goods or as a guarantor for such collection or payment,

 

and every local branch or office in a State of a firm registered outside that State or a company or other body corporate, the principal office or headquarters whereof is outside that State, shall be deemed to be a dealer for the purposes of this Act.

 

Explanation 2: A government which, whether or not in the course of business, buys, sells, supplies or distributes, goods directly or otherwise, for cash or for deferred payment or for commission, remuneration or other valuable consideration, shall, except in relation to any sale, supply or distribution of surplus, unserviceable or old stores or materials or waste products or obsolete or discarded machinery or parts or accessories thereof, be deemed to be a dealer for the purposes of this Act

 

(c)        "declared goods" means goods declared under section 14 to be of special importance in inter‑State trade or commerce;

 

(d)        "goods" includes all materials, articles, commodities and all other kinds of movable property, but does not include newspapers, actionable claims, stocks, shares and securities;

 

(dd)      "place of business" includes,-

(i)         in any case where a dealer carries on business through an agent by (whatever name called), the place of business of such agent;

(ii)                a warehouse, godown or other place where a dealer stores his goods; and

(iii)       a place where a dealer keeps his books of account

 

(e)        "prescribed" means prescribed by rules made under this Act;

 

(f)         "registered dealer" means a dealer who is registered under section 7;

 

(g)        "sale", with its grammatical variations and cognate expressions, means any transfer of property in goods by one person to another for cash or deferred payment or for any other valuable consideration, and includes,-

(i)         a transfer, otherwise than in pursuance of a contract, of property in any goods for cash, deferred payment or other valuable consideration;

(ii)        a transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract;

(iii)       a delivery of goods on hire‑purchase or any system of payment by installments;

(iii)               a transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration;

(v)        a supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable consideration;

(vi)       a supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink (whether or not intoxicating), where such supply or service, is for cash, deferred payment or other valuable consideration, but does not include a mortgage or hypothecation of or a charge or pledge on goods

 

(h)        "sale price" means the amount payable to a dealer as consideration for the sale of any goods, less any sum allowed as cash discount according to the practice normally prevailing in the trade, but inclusive of any sum charged for anything done by the dealer in respect of the goods at the time of or before the delivery thereof other than the cost of freight or delivery or the cost of installation in cases where such cost is separately charged:

 

PROVIDED that in the case of a transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract, the sale price of such goods shall be determined in the prescribed manner by making such deduction from the total consideration for the works contract as may be prescribed and such price shall be deemed to be the sale price for the purposes of this clause

 

(i)         "sales tax law" means any law for the time being in force in any State or part thereof which provides for the levy of taxes on the sale or purchase of goods generally or on any specified goods expressly mentioned in that behalf, and includes value added tax law, and "general sales tax law" means the law for the time being in force in any State or part thereof which provides for the levy of tax on the sale or purchase of goods generally and includes value added tax law;

 

(j)         "turnover" used in relation to any dealer liable to tax under this Act means the aggregate of the sale prices received and receivable by him in respect of sales of any goods in the course of inter‑State trade or commerce made during any prescribed period and determined in accordance with the provisions of this Act and the rules made thereunder;

 

(ja)       "works contract" means a contract for carrying out any work which includes assembling, construction, building, altering, manufacturing, processing, fabricating, erection, installation, fitting out, improvement, repair or commissioning of any movable or immovable property

 

(k)        "year", in relation to a dealer, means the year applicable in relation to him under the general sales tax law of the appropriate State, and where there is no such year applicable, the financial year.

 

COMMENTS

 

Sec. 2(d): Sec. 2, which defines certain expressions occurring in the Act, opens with the words "In this Act, unless the context otherwise requires". This shows that wherever the word "goods" occurs in the enactment it is not mandatory that one should mechanically attribute to the said expression the meaning assigned by it in cl. (d). Ordinarily that is so. But where the context does not permit or where the context requires otherwise, the meaning assigned by it in the definition need not be applied.‑Printers (Mysore) Ltd. v. Asstt. CTO 1994 (93) STC 95.

 

Sec. 2(g): Refusal to entertain the application for issue of C form by the purchaser of the goods in the course of inter‑State sale which is intended to be used by him in the execution of works contract on the anvil of there being no amendment under s. 2(g) pursuant to 46th Constitutional amendment cannot be sustained.‑N.J. Devani Builders (P) Ltd. v. STO 1995 (99) STC 506.

 

Sec. 2(h): It is only the cash discount which has been allowed as a deduction from the sale price and that should also be according to the practice normally prevailing in trade. According to the normally prevailing practice in trade different types of discounts are being given, The important factor which is to be seen is the agreement or the contract which has been entered into between the buyer and the seller. If at the time of entering of the contract for sale of any goods it is stipulated that the price which has been charged or mentioned in the catalogue shall stand reduced if a particular purchase is made within a particular month or even a year, then it would be the abatement of the said price and in accordance with the contract the price shall stand reduced as contemplated in the contract.‑CTO v. Radiant Industries of India 1994 (95) STC 463.

 

The collection of charges for printing, packing, freight, etc., which are nothing but expenses for sales promotion, cannot be considered as exigible to sales tax or fall within the definition of "sale" within the meaning of s. 2(h).‑Jenson & Nicholson (India) Ltd. v. State of Tamil Nadu 1,994 (93) STC 110.

 

Sec. 2(j): What is contemplated by s. 20) is the net amount which is entered in the books of the parties as the amount realisable and, therefore, any rebate which formed an integral part of the agreement or contract and is allowed in accordance with regular business practice has to be adjusted in the sales tax assessment when it varies the price payable in respect of the goods. It is the sale price which ultimately enters into the computation of the turnover which has to be taken as the consideration for which the goods are sold by the dealer. The dealer is entitled to have the rebate excluded from the taxable turnover even where the case does not strictly fall under S. 2(h) in the sense that the rebate was not given as cash discount but was otherwise allowed in accordance with regular business practice and formed an integral part of the agreement or contract between the dealer and the buyer and did vary the price payable by the buyer to the extent thereof.‑State v. Alkali & Chemical Corporation of India Ltd. 1994 (92) STC 597.

 

FORMULATION OF PRINCIPLES FOR DETERMINING WHEN A ALE OR PURCHASE OF GOODS TAKES PLACE IN THE OURSE OF INTER‑STATE TRADE OR COMMERCE OR OUTSIDE A STATE OR IN THE COURSE OF IMPORT OR EXPORT

 

3.         When is a sale or purchase of goods said to take place in the course of inter‑State trade or commerce

 

A sale or purchase of goods shall be deemed to take place in the course of inter‑State trade or commerce if the sale or purchase-

(a)        occasions the movement of goods from one State to another; or

(b)        is effected by a transfer of documents of title to the goods during their movement from one State to another.

 

Explanation I: Where goods are delivered to a carrier or other bailee for transmission, the movement of the goods shall, for the purposes of clause (b), be deemed to commence at the time of such delivery and terminate at the time when delivery is taken from such carrier or bailee.

 

Explanation 2: Where the movement of goods commences and terminates in the same State it shall not be deemed to be a movement of goods from one State to another by reason merely of the fact that in the course of such movement the goods pass through the territory of any other State.

 

COMMENTS

 

Where there is a transfer of document of title to the goods while the goods were in transit from one State to another, the transaction was an inter‑State sale within the meaning of s. 3(b).‑State of AP v. D. R.N. Tagore & Co. 1995 (97) STC 451

 

The question whether a sale is an inter‑State sale or not depends upon the finding as to whether there has been a movement of goods from one State to another under a contract of sale. If the movement of goods from one State to another is made independently of the contract of sale, then it would not attract the provision of s. 3(a).‑Similipahar Forest Development Corporation Ltd. v. State of Orissa 1995 (96) STC 627

 

A sale would be deemed to have occasioned the movement of the goods from one State to another within the meaning of cl. (a) of s. 3 when the movement of those goods is the result of a covenant or incidence of the contract of sale, even though the property in the goods may pass in either State.‑State v. K. V. Baby & Co. 1994 (95) STC 39

 

It is wholly immaterial whether there was any contractual obligation on the part of the seller to move the goods from one State to another. The decisive factor in the movement of goods from one State to another State, pursuant to and as an incident of the contract for sale.‑Indian Explosives Ltd. v. State of Bihar 1993 (89) STC 417

 

The question whether a deemed sale resulting from transfer of property in goods involved in the execution of a particular works contract amounts to a sale in the course of inter‑State trade or commerce under s. 3 has to be decided in the light of the particular terms of the works contract and it cannot be decided in the abstract.‑ Gannon Dunkerley & Co. v. State of Rajasthan 1993 (88) STC 204

 

The test laid down under s. 3 so as to consider a sale as an inter‑State sale is whether it occasions the movement of goods from one State to another. If the movement of goods  from one State to another is the result of a covenant or an incident of the contract of sale, then the sale is an inter state sale.‑East India Cotton Manufacturing Co. Ltd. v. State of Haryana 1993 (90) STC 221.

 

4.         When is a sale or purchase of goods said to take place outside a State

 

(1)        Subject to the provisions contained in section 3, when a sale or purchase of goods is determined in accordance with sub‑section (2) to take place inside a State, such sale or purchase shall be deemed to have taken place outside all other States.

 

(2)        A sale or purchase of goods shall be deemed to take place inside a State, if the goods are within the State-

(a)        in the case of specific or ascertained goods, at the time the contract of sale is made; and

(b)        in the case of unascertained or future goods, at the time of their appropriation to the contract of sale by the seller or by the buyer, whether assent of the other party is prior or subsequent to such appropriation.

 

Explanation: Where there is a single contract of sale or purchase of goods situated at more places than one, the provisions of this sub‑section shall apply as if there were separate contracts in respect of the goods at each of such places.

 

COMMENTS

The question whether a sale is an outside or inside the State or whether it is a sale in the course of import or export will have to be determined in accordance with the principles contained in ss. 4 and 5 of the Act and the State Legislature while enacting the sales tax legislation for the State cannot make a departure from those principles.‑Larsen and Toubro Ltd. v. State of Tamil Nadu 1993 (88) STC 289.

 

5.         When is a sale or purchase of goods said to take place in the course of import or export

 

(1)        A sale or purchase of goods shall be deemed to take place in the course of the export of the goods out of the territory of India only if the sale or purchase either occasions such export or is effected by a transfer of documents of title to the goods after the goods have crossed the customs frontiers of India.

 

(2)        A sale or purchase of goods shall be deemed to take place in the course of the import of the goods into the territory of India only if the sale or purchase either occasions such import or is effected by a transfer of documents of title to the goods before the goods have crossed the customs frontiers of India.

 

(3)        Notwithstanding anything contained in sub‑section (1), the last sale or purchase of any goods preceding the sale or purchase occasioning the export of those goods out of the territory of India shall also be deemed to be in the course of such export, if such last sale or purchase took place after, and was for the purpose of complying with, the agreement or order for or in relation to such export.

 

(4)        The provisions of sub‑section (3) shall not apply to any sale or purchase of goods unless the dealer selling the goods furnishes to the prescribed authority in the prescribed manner a declaration duty filled and signed by the exporter to whom the goods are sold in a prescribed form obtained from the prescribed authority,

 

(5)        Notwithstanding anything contained in sub‑section (1), if any designated Indian carrier purchases Aviation Turbine Fuel for the purposes of its international flight, such purchase shall be deemed to take place in the course of the export of goods out of the territory of India.

 

Explanation: For the purposes of this sub‑section, "designated Indian carrier" means any carrier which the Central Government may, by notification in the Official Gazette, specify in this behalf.

 

COMMENTS

Under s. 5(3) penultimate sales will be deemed to be sales in the course of export provided the sales or purchases took place after the agreement or order for the export of the goods was made and the sale or purchase was for the purposes of complying with an agreement or order for export of the goods.‑Sujir Ganesh v. Board of Revenue 1994 (95) STC 368.

 

The assessee can succeed in claiming exemption from any tax on sale of goods, if he is able to show that the sales, occasioned the export of the goods under s. 5(1) or the sale was effected by the transfer of documents of title to the goods after the goods had crossed the customs frontier of India, in the case of export sale and in the case of import by showing that the sale or purchase which occasioned the import or the sale or purchase was effected by a transfer of documents of title to the goods before the goods had crossed the customs frontiers of India.‑Hindustan Motors Ltd. v. State of Tamil Nadu 1994 (93) STC 159.

 

The integrated activities which form parts of the transaction which occasions the import, are the purchase and the resultant import. The purchase by import does not involve series of integrated activities commencing from the agreement of purchase with the foreign seller and ending with the delivery of the goods to a common carrier for transport into the country by land or sea. Such a purchase cannot be dissociated from the import and therefore the said purchase and the resultant import alone would form part of the transaction occasioning the import. It cannot be said that a purchase of the goods, after the importation of the same in to the country has been completed, is inextricably connected with the transaction which occasioned the import.‑K. Gopinathan Nair v. State of Kerala 1993 (90) STC 283.

 

So as to claim that the sale of the goods has taken place in the course of export it must be satisfied that the sale is effected by transfer of documents of title to the goods and that the transfer of documents was effected after the goods had crossed the customs frontiers of India.‑Kedia Vanaspathi Ltd. v. CCT 1993 (89) STC 555.

 

The question whether the disputed sales were exempt from sales tax would rest on the finding to be recorded as to whether the sales were effected by transfer of documents of title to the goods after the goods crossed the customs frontiers of India and without deciding this Board of Revenue would not be justified in holding that the sales did not constitute sales in the course of export of goods.‑Steel Authority of India Ltd. v. CST 1996 (102) STC 134.

 

The two requirements of sub‑s. (3) of s. 5 which have to be satisfied for deeming the last sale or purchase of any goods within the state to be in the course of export are that such sale or purchase of the goods should take place after the agreement or order for or in relation to their export and that such sale or purchase should take place for the purpose of complying with such agreement or order. Both the conditions have to be satisfied cumulatively.‑Mica Trading Corporation of India Ltd. v. State of AP 1996 (100) STC 142.

 

INTER‑STATE SALES TAX

 

6.         Liability to tax on inter‑State sales

 

(1)        Subject to the other provisions contained in this Act, every dealer shall, with effect from such date as the Central ' Government may, by notification in the Official Gazette, appoint, not being earlier than thirty days from the date of such notification, be liable to pay tax under this Act on all sales of goods other than electrical energy effected by him in the course of inter‑State trade or commerce during any year on and from the date so notified:

 

PROVIDED that a dealer shall not be liable to pay tax under this Act on any sale of goods which, in accordance with the provisions of sub‑section (3) of section 5 is a sale in the course of export of those goods out of the territory of India.

 

(1A)     A dealer shall be liable to pay tax under this Acton a sale of any goods effected by him in the course of inter‑State trade or commerce notwithstanding that no tax would have been leviable (whether on the seller or the purchaser) under the sales tax law of the appropriate State if that sale had taken place inside that State.

 

(2)        Notwithstanding anything contained in sub‑section (1) or sub‑section (M), where a sale of any goods in the course of inter‑State trade or commerce has either occasioned the movement of such goods from one State to another or has been effected by a transfer of documents of title to such goods during their movement from one State to another, any subsequent sale during such movement effected by a transfer of documents of title to such goods,-

(a)        to the government, or

(b)        to a registered dealer other than the government, if the goods are of the description referred to in sub‑section (3) of section 8,

 

shall be exempt from tax under this Act:

 

PROVIDED that no such subsequent sale shall be exempt from tax under this sub‑section unless the dealer effecting the sale furnishes to the prescribed authority in the prescribed manner and within the prescribed time or within such further time as that authority may, for sufficient cause, permit,-

(a)        a certificate duly filled and signed by the registered dealer from whom the goods were purchased containing the prescribed particulars in a prescribed form obtained from the prescribed authority; and

(b)        if the subsequent sale is made-

(i)         to a registered dealer, a declaration referred to in clause (a) of sub‑section (4) of section 8, or

(ii)        to the government, not being a registered dealer, a certificate referred to in clause (b) of sub‑section (4) of section 8:

 

PROVIDED FURTHER that it shall not be necessary to furnish the declaration or the certificate referred to in clause (b) of the preceding proviso in respect of a subsequent sale of goods if,-

 

(a)        the sale or purchase of such goods is, under the sales tax law of the appropriate State, exempt from tax generally or is subject to tax generally at a rate which is lower than four per cent. (whether called a tax or fee or by any other name); and

(b)        the dealer effecting such subsequent sale proves to the satisfaction of the authority referred to in the preceding proviso that such sale is of the nature referred to in clause (a) or clause (b) of this sub‑section.

 

(3)        Notwithstanding anything contained in this Act, no tax under this Act shall be payable by any dealer in respect of sale of any goods made by such dealer, in the course of inter‑State trade or commerce, to any official, personnel, consular or diplomatic agent of-

(i)         any foreign diplomatic mission or consulate in India; or

(ii)        the United Nations or any other similar international body, entitled to privileges under any convention or agreement to which India is a party or under any law for the time being in force, if such official, personnel, consular or diplomatic agent, as the case may be, has purchased such goods for himself or for the purposes of such mission, consulate, United Nations or other body.

 

(4)        The provisions of sub‑section (3) shall not apply to the sale of goods made in the course of inter‑State trade or commerce unless the dealer selling such goods furnishes to the prescribed authority a certificate in the prescribed manner on the prescribed form duly filled and signed by the official, personnel, consular or diplomatic agent, as the case may be.

 

COMMENTS

Sec. 6(2) grants, subject to certain qualifications and fulfilment of certain formalities, exemption to an inter‑State sale of goods coming under s. 3(b), if it is subsequent to an earlier inter‑State sale of s. 3(a) type or s. 3(b) type, provided the said subsequent sale is effected during the movement of said goods from one State to another. In other words, if such a subsequent inter‑State sale is effected by transfer of documents of title to goods, during the movement of goods from one state to another pursuant to an earlier inter‑State sale, such subsequent inter‑State sale is exempted from tax.‑State of TN v. N. Ramu Brothers 1993 (89) STC 481

 

6A.      Burden of proof, etc., in case of transfer of goods claimed otherwise than by way of sale

 

(1)        Where any dealer claims that he is not liable to pay tax under this Act, in respect of any goods, on the ground that the movement of such goods from one State to another was occasioned by reason of transfer of such goods by him to any other place of his business or to his agent or principal, as the case may be, and not by reason of sale, the burden of proving that the movement of those goods was so occasioned shall be on that dealer and for this purpose he may furnish to the assessing authority, within the prescribed time or within such further time as that authority may, for sufficient cause, permit, a declaration, duly filled and signed by the principal officer of the other place of business, or his agent or principal, as the case may be, containing the prescribed particulars in the‑prescribed form obtained from the prescribed authority, along with the evidence of despatch of such goods and if the dealer fails to furnish such declaration, then, the movement of such goods shall be deemed for all purposes of this Act to have been occasioned as a result of sale.

 

(2)        If the assessing authority is satisfied after making such inquiry as he may deem necessary that the particulars contained in the declaration furnished by a dealer under sub‑section (1) are true, he may, at the time of, or at any time before, the assessment of the tax payable by the dealer under this Act, make an order to that effect and thereupon the movement of goods to which the declaration relates shall be deemed for the purpose of this Act to have been occasioned otherwise than as a result of sale.

 

Explanation: In this section, "assessing authority", in relation to a dealer, means the authority for the time being competent to assess the tax payable by the dealer under this Act.

 

7.         Registration of dealers

 

(1)        Every dealer liable to pay tax under this Act shall, within such time as maybe prescribed for the purpose, make an application for registration under this Act to such authority in the appropriate State as the Central Government may, by general or special order, specify, and every such application shall contain such particulars as may be prescribed.

 

(2)        Any dealer liable to pay tax under the sales tax law of the appropriate State, or where there is no such law in force in the appropriate State or any part thereof, any dealer having a place of business in that State or part, as the case may be, may, notwithstanding that he is not liable to pay tax under this Act, apply for registration under this Act to the authority referred to in sub‑section (1), and every such application shall contain such particulars as may be prescribed.

 

Explanation: For the purposes of this sub‑section, a dealer shall be deemed to be liable to pay tax under the sales tax law of the appropriate State notwithstanding that under such law a sale or purchase made by him is exempt from tax or refund or rebate of tax is admissible in respect thereof.

 

(2A)     Where it appears necessary to the authority to whom an application is made under sub‑section (1) or sub‑section (2) so to do for the proper realisation of the tax payable under this Act or for the proper custody and use of the forms referred to in clause (a) of the first proviso to sub‑section (2) of section 6 or sub‑section (1) of section 6A or clause (a) of sub‑section (4) of section 8, he may, by an order in writing and for reasons to be recorded therein, impose as a condition for the issue of a certificate of registration a requirement that the dealer shall furnish in the prescribed manner and within such time as may be specified in the order such security as may be so specified, for all or any of the aforesaid purposes.

 

(3)        If the authority to whom an application under sub‑section (1) or sub‑section (2) is made is satisfied that the application is in conformity with the provisions of this Act and the rules made thereunder and the condition, if any, imposed under sub‑section (2A), has been complied with, he shall register the applicant and grant to him a certificate of registration in the prescribed form which shall specify the class or classes of goods for the purposes of sub‑section (1) of section 8.

 

(3A)     Where it appears necessary to the authority granting a certificate of registration under this section so to do for the proper realisation of tax payable under this Act or for the proper custody and use of the forms referred to in sub‑section (2A), he may, at any time while such certificate is in force, by an order in writing and for reasons to be recorded therein, require the dealer, to whom the certificate has been granted, to furnish within such time as may be specified in the order and in the prescribed manner such security, or, if the dealer has already furnished any security in pursuance of an order under this sub‑section or sub‑section (2A), such additional security, as may be specified in the order, for all or any of the aforesaid purposes.

 

(3B)     No dealer shall be required to furnish any security under sub‑section (2A) or any security or additional security under sub‑section (3A) unless he has been given an opportunity of being heard.

 

(3BB) The amount of security which a dealer may be required to furnish under sub‑section (2A) or sub‑section (3A) or the aggregate of the amount of such security and the amount of additional security which he maybe required to furnish under sub‑section (M), by the authority referred to therein, shall not exceed-

(a)        in the case of a dealer other than a dealer who has made an application, or who has been registered in pursuance of an application, under sub‑section (2), a sum equal to the tax payable under this Act, in accordance with the estimate of such authority, on the turnover of such dealer for the year in which such security or, as the case may be, additional security is required to be furnished; and

(b)        in the case of a dealer who has made an application, or who has been registered in pursuance of an application, under sub‑section (2), a sum equal to the tax leviable under this Act, in accordance with the estimate of such authority on the sales to such dealer in the course of inter‑State trade or commerce in the year in which such security or, as the case may be, additional security is required to be furnished, had such dealer been not registered under this Act.

 

(3C)     Where the security furnished by a dealer under sub‑section (2A) or sub‑section (3A) is in the form of a surety bond and the surety becomes insolvent or dies, the dealer shall, within thirty days of the occurrence of any of the aforesaid events, inform the authority granting the certificate of registration and shall within ninety days of such occurrence furnish a fresh surety bond or furnish in the prescribed manner other security for the amount of the bond.

 

(3D)     The authority granting the certificate of registration may by order and for good, and sufficient cause forfeit the whole or any part of the security furnished by a dealer,-

(a)        for realising any amount of tax or penalty payable by the dealer;

(b)        if the dealer is found to have misused any of the forms referred to in sub‑section (2A) to have failed to keep them in proper custody:

 

PROVIDED that no order shall be passed under this sub‑section without giving the dealer an opportunity of being heard.

 

(3E)     Where by reason of an order under sub‑section (M), the security furnished by any dealer is rendered insufficient, he shall make up the deficiency in such manner and within such time as may be prescribed.

 

(3F)     The authority issuing the forms referred to in sub‑section (2A) may refuse to issue such forms to a dealer who has failed to comply with an order under that sub‑section or sub‑section (M), or with the provisions of sub‑section (3C) or sub‑section (3E), until the dealer has complied with such order or such provisions, as the case may be.

 

(3G)     The authority granting a certificate of registration may, on application by the dealer to whom it has been granted, order the refund of any amount or part thereof deposited by the dealer by way of security under this section, if it is not required for the purposes of this Act.

 

(3H)     Any person aggrieved by an order passed under sub‑section (2A), sub‑section (M), sub‑section (3D) or sub‑section (3G) may, within thirty days of the service of the order on him, but after furnishing the security, prefer, in such form and manner as may be prescribed, an appeal against such order to such authority (hereafter in this section referred to as the "appellate authority") as may be prescribed:

 

PROVIDED that the appellate authority may, for sufficient cause, permit such person to present the appeal,-

(a)        after the expiry of the said period of thirty days; or

(b)        without furnishing the whole or any part of such security.

 

(3I)      The procedure to be followed in hearing any appeal under sub‑section (3H), and the fees payable in respect of such appeals shall be such as may be prescribed.

 

(3J)      The order passed by the appellate authority in any appeal under sub‑section (3H) shall be final.

 

(4)        A certificate of registration granted under this section may-

(a)        either on the application of the dealer to whom it has been granted or, where no such application has been made, after due notice to the dealer, be amended by the authority granting it if he is satisfied that by reason of the registered dealer having changed the name, place or nature of his business or the class or classes of goods in which he carries on business or for any other reason the certificate of registration granted to him requires to be amended; or

(b)        be cancelled by the authority granting it where he is satisfied, after due notice to the dealer to whom it has been granted, that he has ceased to carry on business or has ceased to exist or has failed without sufficient cause, to comply with an order under sub‑section (3A) or with the provisions of sub‑section (3C) or sub‑section (3E) or has failed to pay any tax or penalty payable under this Act, or in the case of a dealer registered under sub‑section (2) has ceased to be liable to pay tax under the sales tax law of the appropriate State or for any other sufficient reason.

 

(5)        A registered dealer may apply in the prescribed manner not later than six months before the end of a year to the authority which granted his certificate of registration for the cancellation of such registration, and the authority shall, unless the dealer is liable to pay tax under this Act, cancel the registration accordingly, and where he does so, the cancellation shall take effect from the end of the year.

 

8.         Rates of tax on sales in the course of inter‑State trade or commerce

 

(1)        Every dealer, who in the course of inter‑State trade or commerce,­-

(a)        sells to the government any goods; or

(b)        sells to a registered dealer other than the government goods of the description referred to in sub‑section (3);

 

shall be liable to pay tax under this Act, with effect from such date as may be notified by the Central Government in the Official Gazette for this purpose, which shall be two per cent. of his turnover or at the rate applicable to the sale or purchase of such goods inside the appropriate State under the sales tax law of that State, or, as the case may be, under any enactment of that State imposing value added tax, whichever is lower:

 

PROVIDED that the rate of tax payable under this sub‑section by a dealer shall continue to be four per cent. of his turnover, until the rate of two per cent. takes effect under this sub‑section.

 

(2)        The tax payable by any dealer on his turnover insofar as the turnover or any part thereof relates to the sale of goods in the course of inter‑State trade or commerce not falling within sub‑section (1)-

(a)        in the case of declared goods, shall be calculated at twice the rate applicable to the sale or purchase of such goods inside the appropriate State;

(b)        in the case of goods other than declared goods, shall be calculated at the rate of ten per cent or at the rate applicable to the sale or purchase of such goods inside the appropriate State, whichever is higher.

(c)        in the case of goods, the sale or, as the case may be, the purchase of which is, under the sales tax law of the appropriate State, exempt from tax generally shall be nil,

 

and for the purpose of making any such calculation under clause (a) or clause (b), any such dealer shall be deemed to be a dealer liable to pay tax under the sales tax law of the appropriate State, notwithstanding that he, in fact, may not be so liable under that law.

 

Explanation: For the purposes of this sub‑section a sale or purchase of any goods shall not be deemed to be exempt from tax generally under the sales tax law of the appropriate State if under that law the sale or purchase of such goods is exempt only in specified circumstances or under specified conditions or the tax is levied on the sale or purchase of such goods at specified stages or otherwise than with reference to the turnover of the goods.

 

[(2A) x x x]

 

(3)        The goods referred to in clause (b) of sub‑section (l)

 

[* * *]

 

(b)        [* * *] are goods of the class or classes specified in the certificate of registration of the registered dealer purchasing the goods as being intended for re‑sale by him or subject to any rules made by the Central Government in this behalf, for use by him in the manufacture or processing of goods for sale or 21 in the communications network or in mining or in the generation or distribution of electricity or any other form of power;

(c)        are containers or other materials specified in the certificate of registration of the registered dealer purchasing the goods, being containers or materials intended for being used for the packing of goods for sale;

(d)        are containers or other materials used for the packing of any goods or classes of goods specified in the certificate of registration referred to in [* * *] clause (b) or for the packing of any containers or other materials specified in the certificate of registration referred to in clause (c).

 

(4)        The provisions of sub‑section (1) shall not apply to any sale in the course of inter‑State trade or commerce unless the dealer selling the goods furnishes to the prescribed authority in the prescribed manner,-

(a)        a declaration duly filled and signed by the registered dealer to whom the goods are sold containing the prescribed particulars in a prescribed form obtained from the prescribed authority; or

(b)        if the goods are sold to the government, not being a registered dealer, a certificate in the prescribed form duly filled and signed by a duly authorised officer of the government:

 

PROVIDED that the declaration referred to in clause (a) is furnished within the prescribed time or within such further time as that authority may, for sufficient cause, permit.

 

(5)        Notwithstanding anything contained in this section, 'the State Government' may on the fulfilment of the requirements laid down in sub‑section (4) by the dealer if it is satisfied that it is necessary so to do in the public interest, by notification in the Official Gazette, and subject to such conditions as may be specified therein, direct,-

(a)        that no tax under this Act shall be payable by any dealer having his place of business in the State in respect of the sales by him, in the course of inter‑State trade or commerce, to a registered dealer or the Government from any such place of business of any such goods or classes of goods as may be specified in the  notification, or that the tax on such sales shall be calculated at such lower rates than those specified in sub‑section (1) or sub‑section (2) as may be mentioned in the notification;

(b)        that in respect of all sales of goods or sales of such classes of goods as may be specified in the notification, which are made, in the course of inter‑State trade or commerce, to a registered dealer or the Government by any dealer having his place of business in the State or by any class of such dealers as may be specified in the notification to any person or to such class of persons as may be specified in the notification, no tax under this Act shall be payable or the tax on such sales shall be calculated at such lower rates than those specified in sub‑section (1) or sub‑section (2) as may be mentioned in the notification.

 

(6)        Notwithstanding anything contained in this section, no tax under this Act shall be payable by any dealer in respect of sale of any goods made by such dealer, in the course of inter‑State trade or commerce to a registered dealer for the purpose of setting up, operation, maintenance, manufacture, trading, production, processing, assembling, repairing, reconditioning, re‑engineering, packaging or for use as packing material or packing accessories in an unit located in any special economic zone or for development, operation and maintenance of special economic zone by the developer of the special economic zone, if such registered dealer has been authorised to establish such unit or to develop, operate and maintain such special economic zone by the authority specified by the Central Government in this behalf.

 

(7)        The goods referred to in sub‑section (6) shall be the goods of such class or classes of goods as specified in the certificate of registration of the registered dealer referred to in that sub‑section.

 

(8)        The provisions of sub‑sections (6) and (7) shall not apply to any sale of goods made in the course of inter‑State trade or commerce unless the dealer selling such goods furnishes to the prescribed authority referred to in sub‑section (4) a declaration in the prescribed manner on the prescribed form obtained from the authority specified by the Central Government under sub‑section (6) duly filled in and signed by the registered dealer to whom such goods are sold.

 

Explanation: For the purposes of sub‑section (6), the expression "special economic zone" has the meaning assigned to it in clause (iii) to Explanation 2 to the proviso to section 3 of the Central Excise Act, 1944 (1 of 1944).

 

COMMENTS

Clause 118 of the Finance (No. 2) Act, 2004, amended section 8 to extend the benefit of exemption from payment of Central Sales Tax to individual units in special economic zones for setting up, operation and maintenance of such units and also to developers of special economic zones who develop, operate and maintain such special economic zones.

 

What is required for determination of goods for the purposes of s. 8(1) is that they should have been specified in the registration certificate. Such registration ensures for the purposes of s. 8(3)(b) and (4) for purchasing the goods from any other dealer registered under the Act, who is liable to pay tax under the Act for the purpose of securing the benefit of s. 8(1). Therefore, when the liability to change under the Act by a person seeking registration under the Act is not an essential ingredient for securing registration, the question of subsequent intended sale attracting the provisions of the Act does not remain germane while considering the application under s. 7 either for the grant of registration certificate or for seeking amendment of it for including certain goods to be specified in the certificate of registration as purchasing goods intended to be resold or used in the manufacture or process of the goods for sale.‑N.J, Devani Builders (P) Ltd. v. STO 1995 (99) STC 506.

 

In order that a commodity be deemed to be exempt from tax generally, such an exemption must be enjoyed by it unconditionally. An exemption which is conditional or subject to the existence of any specified circumstances does not by reason of the Explanation to s. 8 amount to an exemption of a general character so as to exempt the inter‑State sales of any such product from the levy of Central Sales Tax.‑Manish Plastics v. CCT 1995 (99) STC 293,

 

The terms "specified circumstances" and "specified conditions" referred to in the explanation to s. 8(2A) should relate to the transaction of the sale of the goods and not the identification of the dealer or the commodity for which the exemption was claimed.‑Pine Chemicals Ltd. v. Assessing Authority 1992 (85) STC 432.

 

In order to claim exemption under s. 8(2A), it must be satisfied that the turnover of the sale of goods in question is exempted under the appropriate State Act and the grant of exemption under the State Act is not under any specified circumstances or specified conditions. In other words, it is only when an exemption is granted under the State law without specifying any circumstances or conditions that exemption can be claimed under sub‑s. (2A) of s. 8.‑PinaAdni Seeds v. State of A. P. 1995 (98) STC 144.

 

Where the exemption is only in specified circumstances or under specified conditions, it will not fall under the category of exemption from the tax generally where the exemption is not in specified circumstances or not under specified conditions, it will be a case of exemption from tax generally.‑Mahavir Coke Industries v. Commissioner of Taxes 1995 (97) STC 186.

 

Sec. 8A(l)(b) contemplates the deduction of the price of all goods returned. A sales return means a return of the very goods purchased by the buyer in while or in part. It is a reversal of the sale as if the sale had not taken place in respect of the returned goods and therefore contemplates a return before the goods are appropriated and used by the buyer. A return of the left overs after use cannot be equated with a sales return. The return should be of goods of the same nature and quality as those supplied.‑Grasim Industries Ltd. v. State of Kerala 1995 (96) STC 285.

 

The idea behind sub‑s. (2A) of s. 8, is to exempt the sale/purchase of goods from the Central Sales Tax where the sale or purchase of such goods is exempt generally under the State sales tax law. Sub‑s. (2A) of s. 8 specifically requires that such exemption must be a general exemption and not an exemption operative in specified circumstances or under specified conditions.‑CST v. Pine Chemicals Ltd. 1995 (96) STC 355,

 

The expression "goods" occurs on four occasions in s. 8(3)(b). On the first three occasions, there is no doubt, it has to be understood in the sense it is defined in cl. (d) of s. 2. Indeed when s. 8(1)(b) speaks of goods, it is really referring to goods referred to in the first half of s. 8(3)(b) i.e. on first three occasions. It is only when s. 8(3)(b) uses the expression "goods" in the second half of the clause i.e. on the fourth occasion that it does not and cannot be understood in the sense it is defined in s. 2(d). In other words, the "goods" referred in the first half of cl. (b) in s. 8(3) refers to what may generally be referred it as raw material. Sec. 2 which defines certain expressions occurring in the Act opens with the words "in this Act, unless the context otherwise requires". This shows that wherever the word "goods" occurs in the enactment, it is not mandatory that one should mechanically attribute to the said expression the meaning assigned to it in cl. (d). Ordinarily that is so. But where the context requires otherwise, the meaning assigned to it in the said definition need not be applied.‑Printers (Mysore) Ltd. v. Asstt. CTO 1994 (93) STC 95.

 

Goods in question must be one specified in the certificate of registration of the registered dealer and must be intended for use by him either in the manufacture or processing of goods on in mining or in generation or distribution of electricity or any other form of power. The expression "in mining" cannot be construed disjunctively and ~s controlled by the expression "by him" when goods are purchased by a registered dealer and the goods are mentioned in the certificate of registration and are used in mining, not by him but some other registered dealer, then it would be a contravention of s. 8(3)(b).‑Dy. Chief Mining Engineer v. State of Orissa 1993 (9) STC 372.

 

The levy of surcharge is also part of and partakes the character of a levy of sales tax on the turnover relating to sale of goods. The mere fact that the measure or computation of the tax has been declared to be made with reference to a particular percentage of the tax payable by a dealer or of a percentage of the taxable turnover does not alter the character of the levy and make it any the less a levy of sales tax on the turnover relating to sale or purchase of goods. The words "sales tax law" of the appropriate State will encompass any law providing for the levy of sales tax and not necessarily the general sales tax law only.‑Engine Valves Ltd. v. UOI 1993 (90) STC 84.

 

The stress in s. 8(3)(b) is not on the question of manufacture of a distinct commercial product, but on the fact that the use put to by the dealer of the raw materials in the manufacture of goods for safe.‑Indian Aluminium Co. Ltd. v. STO 1993 (90) STC 410.

 

The dealer is entitled to keep a separate account of inter‑State sales tax collected by him on the sales. If he does so, he is entitled to deduct the total amount of sales tax from the aggregate of "sale price" which included that total tax amount. But it the dealer fails to keep a separate account of inter‑State sales tax collected by him, the formula given in cf. (a) of sub‑s. (1) of s. 8A will have to be applied to fulfil the object.‑State of Orissa v. Ghewarchand Kamal Kumar 1993 (89) STC 32.

 

8A.      Determination of turnover

 

(1)        In determining the turnover of a dealer for the purpose of this Act, the following deductions shall be made from the aggregate of the sale prices, namely:-

(a)        the amount arrived at by applying the following formula-­

 

rate of tax  x  aggregate of sale prices:

100 + rate of tax

 

PROVIDED that no deduction on the basis of the above formula shall be made if the amount by way of tax collected by a registered dealer, in accordance with the provisions of this Act, has been otherwise deducted from the aggregate of sale prices.

 

Explanation: Where the turnover of a dealer is taxable at different rates, the aforesaid formula shall be applied separately in respect of each part of the turnover liable to a different rate of tax;

 

(b)        the sale price of all goods returned to the dealer by the purchasers of such goods,-

(i)         within a period of three months from the date of delivery of the goods, in the case of goods returned before the 14th day of May, 1966;

(ii)        within a period of six months from the date of delivery of the goods, in the case of goods returned on or after the 14th day of May, 1966:

 

PROVIDED that satisfactory evidence of such return of goods and of refund or adjustment in accounts of the sale price thereof is produced before the authority competent to assess or, as the case may be, reassess the tax payable by the dealer under this Act; and

 

(c)        such other deductions as the Central Government may, having regard to the prevalent market conditions, facility of trade and interests of consumers, prescribe.

 

(2)        Save as otherwise provided in sub‑section (1), in determining the turnover of a dealer for the purposes of this Act, no deduction shall be made from the aggregate of the sale prices.

 

9.         Levy and collection of tax and penalties

 

(1)        The tax payable by any dealer under this Acton sales of goods effected by him in the course of inter‑State trade or commerce, whether such sales fall within clause (a) or clause (b) of section 3, shall be levied by the Government of India and the tax so levied shall be collected by that Government in accordance with the provisions of sub‑section (2), in the State from which the movement of the goods commenced:

 

PROVIDED that, in the case of a sale of goods during their movement from one State to another, being a sale subsequent to the first sale in respect of the same goods and being also a sale which does not fall within sub‑section (2) of section 6, the tax shall be levied and collected-

(a)        where such subsequent sale has been effected by a registered dealer in the State from which the registered dealer obtained or, as the case may be, could have obtained, the form prescribed for the purposes of clause (a) of sub‑section (4) of section 8 in connection with the purchase of such goods, and

(b)        where such subsequent sale has been effected by an unregistered dealer in the State from which such subsequent sale has been effected.

 

(2)        Subject to the other provisions of this Act and the rules made thereunder, the authorities for the time being empowered to assess, reassess, collect and enforce payment of any tax under general sales tax law of the appropriate State shall, on behalf of the Government of India, assess, reassess, collect and enforce payment of tax, including any' interest or penalty, payable by a dealer under this Act as if the tax or interest or penalty payable by such a dealer under this Act is a tax or interest or penalty payable under the general sales tax law of the State; and for this purpose they may exercise all or any of the powers they have under the general sales tax law of the State; and the provisions of such law, including provisions relating to returns, provisional assessment, advance payment of tax, registration of the transferee of any business, imposition of the tax liability of a person carrying on business on the transferee of, or successor to, such business, transfer of liability of any firm or Hindu undivided family to pay tax in the event of the dissolution of such firm or partition of such family, recovery of tax from third parties, appeals, reviews, revisions, references, refunds, rebates, penalties charging or payment of interest compounding of offences and treatment of documents furnished by a dealer as confidential, shall apply accordingly:

 

PROVIDED that if in any State or part thereof there is no general sales tax law in force, the Central Government may, by rules made in this behalf make necessary provision for all or any of the matters specified in this sub‑section.

 

(2A)     All the provisions relating to offences, interest and penalties (including provisions relating to penalties in lieu of prosecution for an offence or in addition to the penalties or punishment for an offence but excluding the provisions relating to matters provided for in sections 10 and 10A) of the general sales tax law of each State shall, with necessary modifications, apply in relation to the assessment, reassessment, collection and the enforcement of payment of any tax required to be collected under this Act in such State or in relation to any process connected with such assessment, reassessment, collection or enforcement of payment as if the tax under this Act were a tax under such sales tax law.

 

(2B)     If the tax payable by any dealer under this Act is not paid in time, the dealer shall be liable to pay interest for delayed payment of such tax and all the provisions for delayed payment of such tax and all the provisions relating to due date for payment of tax, rate of interest for delayed payment of tax and assessment and collection of interest for delayed payment of tax, of the general sales tax law of each State, shall apply in relation to due date for payment of tax, rate of interest for delayed payment of tax, and assessment and collection of interest for delayed payment of tax under this Act in such States as if the tax and the interest payable under this Act were a tax and an interest under such sales tax law.

 

(3)        The proceeds in any financial year of any tax, including any interest or penalty, levied and collected under this Act in any State (other than a Union Territory) on behalf of the Government of India shall be assigned to that State and shall be retained by it; and the proceeds attributable to Union Territories shall form part of the Consolidated Fund of India.

 

COMMENTS

The power to collect the Central Sales Tax has been specified in s. 9(l) and could be exercised by the government in accordance with the provisions of sub‑s. (2) of s. 9. The tax is leviable under the main clause by the Government of India in the State from which the movement of the goods commenced. After the movement of goods, if the assessee makes subsequent inter‑State sale, then the proviso comes into picture. The proviso to sub‑s. (1) of s. 9 provides that in the case of a sale of goods during their movement from one State to another, being a sale subsequent to the first sale in respect of the same goods, the tax shall, where such sale does not fall within sub‑s. (2) of s. 6, be levied and collected in the State form which the registered dealer effecting the subsequent sale obtained or could have been obtained, the from prescribed for the purpose of cl. (a) of sub‑s. 4 of s. 8 in accordance with the purchases of such goods.‑Rajendra Trading Co. v. CTO 1994 (93) STC 71.

 

The liability under s. 9(2) would have to be read along with the then existing State law and also along with the subsequent amendments that would be made and that would come in existence in future from time to time.‑A. Pareed Pillay v. STO 1996 (101) STC 250.

 

9A.      Collection of tax to be only by registered dealers

 

No person who is not a registered dealer shall collect in respect of any sale by him of goods in the course of inter‑State trade or commerce any amount by way of tax under this Act, and no registered dealer shall make any such collection except in accordance with this Act and the rules made thereunder.

 

9B.      Rounding off of tax, etc.

 

The amount of tax, interest, penalty, fine or any other sum payable, and the amount of ref und due, under the provisions of this Act shall be rounded off to the nearest rupee and, for this purpose, where such amount contains a part of a rupee consisting of paise, then, if such part is fifty paise or more it shall be increased to one rupee and if such part is less than fifty paise, it shall be ignored:

 

PROVIDED that nothing in this section shall apply for the purpose of collection by a dealer of any amount by way of tax under this Act in respect of any sale by him of goods in the course of inter‑State trade or commerce.

 

10.       Penalties

 

If any person,-

(a)        furnishes a certificate or declaration under sub‑section (2) of section 6 or sub‑section (1) of section 6A or sub‑section (4) or sub‑section (8) of section 8, which he knows, or has reason to believe, to be false; or

(aa)      fails to get himself registered as required by section 7, or fails to comply with an order under sub‑section (3A) or with the requirements of sub‑section (K) or sub‑section (3E), of that section; or

(b)        being a registered dealer, falsely represents when purchasing any class of goods that goods of such class are covered by his certificate of registration; or

(c)        not being a registered dealer, falsely represents when purchasing goods in the course of inter‑State trade or commerce that he is a registered dealer.‑ or

(d)        after purchasing any goods for any of the purposes specified in clause (b) or clause (c) or clause (d) of sub‑section (3) or sub‑section (6) of section 8 fails, without reasonable excuse, to make use of the goods for any such purpose;

(e)        has in his possession any form prescribed for the purpose of sub‑section (4) or sub‑section (8) of section 8 which has not been obtained by him or by his principal or by his agent in accordance with the provisions of this Act or any rules made thereunder; or

(f)         collects any amount by way of tax in contravention of the provisions contained in section 9A,

 

he shall be punishable with simple imprisonment which may extend to six months, or with fine or with both; and when the offence is a continuing offence, with a daily fine which may extend to fifty rupees for every day during which the offence continues.

 

COMMENTS

Even where the incorrectness of the return is claimed to be due to want of care on the part of the assessee, for such want of care, the court may in a given case, infer deliberateness and the return may be liable to be branded as a false return. Mens rea is an essential element to prove offence under s. 1 0(b). The tax authorities have to establish that representation was false to the knowledge of the assessee. In the absence of mens rea a dealer cannot be penalised for contravention as prescribed in s. 10(b). In order to constitute an offence under s. 10(b), it must be provided that the dealer made a representation that goods purchased were covered by certificate of registration with the knowledge that they were not so covered. The offence is committed only when goods are not covered under the certificate of registration and there is a false representation that they are so covered.‑Utkal Trading Co. v. STO 1994 (94) STC 545.

 

If on examining the certificate of registration, the goods which have been purchased by issuing "C" form if found to be used for the purpose of generation or distribution of electricity, then it cannot be said that there has been any use other than the use for which they were purchased or mentioned in the certificate of registration attracting s. 1(d). The Revenue had to establish that goods had been used for purposes other than generation and distribution of power,‑National Aluminium Co. Ltd. v. State of Orissa 1994 (93) STC 529.

 

The offence can be said to have been committed when there is no reasonable excuse with the assessee. In other words, the mens rea is the necessary ingredient of the offence and no penalty can be levied if there is a bonafide belief based on certain circumstances in which use was made or there is a reasonable excuse.‑CTO v. Ajmer Zila Dugadh Utpadak Sangh Ltd. 1993 (91) STC 234.

 

Imposition of penalty is discretionary. Circumstances relevant to a decision to impose penalty have to be considered. Consideration of circumstances relevant to the decision to impose penalty is a necessary part of the quasi judicial function of the Sales Tax Officer. The offences under cls. (b) and (d) of s. 10 may be committed in varied circumstances. Every offence irrespective of the circumstances of its commission, does not attract penalty or the same penalty. Where the imposition of penalty is discretionary, discretion must be exercised with in reasonable time. What is reasonable time depends upon the circumstances of each case unless the authority is able to demonstrate that the delay was occasioned by circumstances beyond its control or by insurmountable difficulties, such delay is fatal to the order imposing the penalty.‑Tata Tea Ltd. v. Agrl. /T0 and STO 1993 (91) STC 338.

 

10A.    Imposition of penalty in lieu of prosecution

 

(1)        If any person purchasing goods is guilty of an offence under clause (b) or clause (c) or clause (d) of section 10, the authority who granted to him or, as the case may be, is competent to grant to him a certificate of registration under this Act may, after giving him a reasonable opportunity of being heard, by order in writing, impose upon him by way of penalty a sum not exceeding one‑and‑a‑half times the tax which would have been levied under sub‑section (2) of section 8 in respect of the sale to him of the goods, if the sale had been a sale failing within that sub‑section

 

PROVIDED that no prosecution for an offence under section 10 shall be instituted in respect of the same facts on which a penalty has been imposed under this section.

 

(2)        The penalty imposed upon any dealer under sub‑section (1) shall be collected by the Government of India in the manner provided in sub‑section (2) of section 9,-

(a)        in the case of an offence falling under clause (b) or clause (it) of section 10, in the State in which the person purchasing the goods obtained the form prescribed for the purposes of clause (a) of sub‑section (4) of section 8 in connection with the purchase of such goods;

(b)        in the case of an offence falling under clause (c) of section 10, in the State in which the person purchasing the goods should have registered himself if the offence had not been committed.

 

11.       Cognizance of offences

 

(1)        No court shall take cognizance of any offence punishable under this Act or the rules made thereunder except with the previous sanction of the government within the local limits of whose jurisdiction the offence has been committed or of such officer of that government as it may by general or special order, specify in this behalf, and no court inferior to that of a presidency magistrate or a magistrate of the first class shall try any such offence.

 

(2)               All offences punishable under this Act shall be cognizable and bailable.

 

12.       Indemnity

 

No suit, prosecution or other legal proceeding shall lie against any officer of government for anything which is in good faith done or intended to be done under this Act or the rules made thereunder.

 

13.       Power to make rules

 

(1)        The Central Government may, by notification in the Official Gazette, make rules providing for-

(a)        the manner in which applications for registration may be made under this Act, the particulars to be contained therein, the procedure for the grant of such registration, the circumstances in which registration may be refused and the form in which the certificate of registration may be given;

(aa)      the manner of determination of the sale price and the deductions from the total consideration for a works contract under the proviso to clause (h) of section 2;

(ab)      the form and the manner for furnishing declaration under sub‑section (8) of section 8;

(b)        the period of turnover, the manner in which the turnover in relation to the sale of any goods under this Act shall be determined, and the deductions which may be made under clause (c) of sub‑section (1) of section 8A in the process of such determination;

(c)        the cases and circumstances in which, and the conditions subject to which, any registration granted tinder this Act may be cancelled;

(d)        the form in which and the particulars to be contained in any declaration or certificate to be given under this Act the State of origin of such form or certificate and the time within which any such certificate or declaration shall be produced or furnished;

(e)        the enumeration of goods or class of goods used in the manufacture or processing of goods for sale or in mining or in the generation or distribution of electricity or any other form of power;

(f)         the matters in respect of which provision may be made under the proviso to sub‑section (2) of section 9;

(g)        the fees payable in respect of applications under this Act,

(h)        the proper functioning of the authority constituted under section 19;

(i)         the salaries and allowances payable to, and the terms and conditions of service of, the Chairman and Members under sub‑section (3) of section 19;

(j)         any other matter as may be prescribed.

 

(2)        Every rule made by the Central Government under sub‑section (1) shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

 

(3)        The State Government may make rules, not inconsistent with the provisions of this Act and the rules made under sub‑section (1), to carry out the purposes of this Act.

 

(4)        In particular and without prejudice to the powers conferred by sub‑section (3), the State Government may make rules for all or any of the following purposes, namely:-

(a)        the publication of lists of registered dealers, of the amendments made in such lists from time to time, and the particulars to be contained in such lists;

(aa)      the manner in which security may be furnished under sub‑section (2A) or sub‑section (3A) or sub‑section (3C) of section 7 and the manner in which and the time within which any deficiency may be made up under sub‑section (3E) of that section

(b)        the form and manner in which accounts relating to sales in the course of inter‑State trade or commerce shall be kept by registered dealers;

(c)        the furnishing of any information relating to the stocks of goods of purchases, sales and deliveries of books by, any dealer or any other information relating to his business as may be necessary for the purposes of this Act;

(d)        the inspection of any books, accounts or documents required to be kept under this Act the entry into any premises at all reasonable times for the purposes of searching for any such books, accounts or documents kept or suspected to be kept in such premises and the seizure of such books, accounts or documents;

(e)        the authority from whom, the conditions subject to which and the fees subject to payment of which any form of certificate prescribed under clause (a) of the first proviso to sub‑section (2) of section 6 or of declaration prescribed under sub‑section (1) of section 6A or sub‑section (4) of section 8 may be obtained, the manner in which such forms shall be kept in custody and records relating thereto maintained and the manner in which any such form may be used and any such certificate or declaration may be furnished;

(ee)      the form and manner in which, and the authority to whom, an appeal may be preferred under sub‑section (3H) of section 7, the procedure to be followed in hearing such appeals and the fees payable in respect of such appeals

(f)         in the case of an Undivided Hindu Family, association, club, society, firm or company or in the case of a person who carried on business as a guardian or trustee or otherwise on behalf of another person, the furnishing of a declaration stating the name of the person who shall be deemed to be the manager in relation to the business of the dealer in the State and the form in which such declaration may be given;

(g)        the time within which, the manner in which and the authorities to whom any change in the ownership of any business or in the name, place or nature of any business carried on by any dealer shall be furnished.

 

(5)        In making any rule under this section, the Central Government or, as the case may be, the State Government may direct that a breach thereof shall be punishable with fine which may extend to five hundred rupees and when the offence is a continuing offence, with a daily fine which may extend to fifty rupees for every day during which the offence continues.

 

GOODS OF SPECIAL IMPORTANCE IN INTER‑STATE

TRADE OR COMMERCE

 

14.       Certain goods to be of special importance in inter‑State trade or commerce

 

It is hereby declared that the following goods are of special importance in inter State trade or commerce:-

(i)         Cereals, that is to say,­-

(i)         Paddy (Oryza sativa L.);

(ii)        Rice (Oryza sativa L.);

(iii)       Wheat (Triticum vulgare, T. compactum, T. sphaerococcum, T. durum, T. aestivum L. T. dicoccum);

(iv)              Jowar or milo (Sorghum vulgare Pers);

(v)                Bazra (Pennisetum typhodeum L.);

(vi)              Maize (Zea mays L.);

(vii)      Ragi (Eleusine coracana Gaertn.);

(viii)           Kodon (Paspalum scrobiculatum L.);

(ix)       Kutki (Panicum miliare L.);

(x)        Barley (Hordeum vulgare L.);

 

(ia)       Coal, including coke in all its forms, but excluding charcoal:

 

PROVIDED that during the period commencing on the 23rd day of February, 1967 and ending with the date of commencement of section 11 of the Central Sales Tax (Amendment) Act, 1972 (61 of 1972), this clause shall have effect subject to the modification that the words "but excluding charcoal" shall be omitted

(ii)        Cotton, that is to say, all kinds of cotton (indigenous or imported) in its unmanufactured state, whether ginned or unginned, baled, pressed or otherwise, but not including cotton waste;

(iia)      Cotton fabrics covered under heading Nos. 52.05, 52.06, 52.07, 52.08, 52.09,52.10,52.11,52.12,58.01,58.02,58.03,58.04,58.05,58.06,59.01,59.03,59.05, 59.06 and 60.01 of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986);

(iib)      Cotton yarn, but not including cotton yam waste;

(iic)      Crude oil, that is to say, crude petroleum oils and crude oils obtained from bituminous minerals (such as shale, calcareous rock, sand), whatever their composition, whether obtained from normal or condensation oil‑deposits or by the destructive distillation of bituminous minerals and whether or not subjected to all or any of the following processes:-

(1)        Decantation;

(2)        De‑salting;

(3)        Dehydration;

(4)        Stabilisation in order to normalise the vapour pressure;

(5)        Elimination of very light fractions with a view to returning them to the oil‑deposits in order to improve the drainage and maintain the pressure;

(6)        The addition of only those hydrocarbons previously recovered by physical methods during the course of the above‑mentioned processes;

(7)        Any other minor process (including addition of pour point depressants or flow improvers) which does not change the essential character of the substance

 

(iid)      Aviation Turbine Fuel sold to a Turbo‑Prop Aircraft.

 

Explanation: For the purposes of this clause, "Turbo‑Prop Aircraft" means an aircraft deriving thrust, mainly from propeller, which may be driven by either turbine engine or piston engine

 

(iii)       Hides and skins, whether in a raw or dressed state;

(iv)       Iron and steel, that is to say,-

(i)         pig iron, sponge iron and cast iron including ingot moulds, bottom plates, iron scrap, cast iron scrap, runner scrap and iron skull scrap;

(ii)        Steel semis (ingots, slabs, blooms and billets of all qualities, shapes and sizes);

(iii)       Skelp bars, tin bars, sheet bars, hoe‑bars and sleeper bars

(iv)       Steel bars (rounds, rods, squares, flats, octagons and hexagons, plain and ribbed or twisted, in coil form as well as straight lengths);

(v)        Steel structurals (angles, joists, channels, tees, sheet piling sections, Z sections or any other rolled sections);

(vi)       Sheets, hoops, strips and skelp, both black and galvanised, hot and cold rolled, plain and corrugated, in all qualities, in straight lengths and in coil form, as rolled and in rivetted condition;

(vii)      Plates both plain and chequered in all qualities;

(viii)      Discs, rings, forgings and steel castings;

(ix)       Tool, alloy and special steels of any of the above categories;

(x)        Steel melting scrap in all forms including steel skull, turnings and borings;

(xi)       Steel tubes, both welded and seamless, of all diameters and lengths, including tube fittings;

(xii)      Tin‑plates, both hot dipped and electrolytic and tinfree plates;

(xiii)      Fish plate bars, bearing plate bars, crossing sleeper bars, fish plates, bearing plates, crossing sleepers and pressed steel sleepers‑heavy and light crane rails;

(xiv)     Wheels, tyres, axles and wheels sets;

(xv)      Wire rods and wires‑rolled, drawn, galvanised, aluminised, tinned or coated such as by copper;

(xvi)           Defectives, rejects, cuttings or end pieces of any of the above categories

 

(v)        Jute, that is to say, the fibre extracted from plants belonging to the species Corchorus capsularies and Corchorus olitorius and the fibre known as mesta or bimli extracted from plants of the species Hibiscus cannabinus and Hibiscus sabdariffa‑Var alitissima and the fibre known as Sunn or Sunn‑hemp extracted from plants of the species Crotalaria juncea whether baled or otherwise;

(vii)             Oilseeds, that is to say,-

(i)                  Groundnut or peanut (Arachis hypogaea);

(ii)                Seasamum or Til (Sesamum orientale);

(iii)               Coftonseed.(Gossypium Spp);

(iv)              Soyabean (Glycine seja);

(v)                Rapeseed and mustard-

(1)               Torta (Brassica campestris var toria);

(2)               Rai (Brassica juncea);

(3)               Jamba‑Taramira (Eruca sativa);

(4)               Sarson, yellow and brown (Brassica campestris var sarson);

(5)               Banarsi Rai or True Mustard (Brassica nigra);

(vi)              Linseed (Linum usitatissimum);

(vii)      Castor (Ricinus communis);

(viii)      Coconut (i.e. copra excluding tender coconuts) (Cocosnucifera),

(ix) Sunflower (Helianthus annus);

            (x)        Nigar seed (Guizotia abyssinica);

(xi)       Neem, vepa (Azadirachta indica);

(xii)      Mahua, illupai, Ippe (Madhuca indica M. latifolia, Bassia latifolia and Madhuca longifolia syn. M. longifolia);

(xiii)           Karanja, pongam, honga (Pongamia pinnata syn. P. Glabra);

(xiv)           Kusum  (Schleichera oleosa, syn. S. trijuga);

(xv)      Punna, undi (Calophyllum inophyllum)

(xv)            Kokum (Carcinia indica);

(xvii)     Sal (Shorea robusta);

(xviii)        Tung (Aleurites fordii and A. montana);

(xix)     Red palm (Elaeis guinensis);

            (xx)      Safflower (Carthanus tinctorius)

(via)     Pulses, that is to say,­-

(i)         Gram or gulab gram (Cicerarietinum L.);

(ii)        Tur or arhar (Cajanus cajan);

(iii)       Moong or green gram (Phaseolous aureus);

(iv)       Mmasur or lentil (Lens esculenta Moench, Lens cuinarie Medic.);

(v)        Urad or black gram (Phaseolus mungo);

(vi)       Moth (Phaseolus aconitifolius Jacq);

(vii)      Lakh or khesari (Lathyrus Sativus);

(Vii)     Man‑made fabrics covered under heading nos. 54.08, 54.09, 54.10, 54.11, 54.12, 55.07, 55.08, 55.09, 55.10, 55.11, 55.12, 58.01, 58.02, 58.03, 58.04, 58.05, 58.06,159.01, 59.02, 59.03, 59.05, 59.06 and 60.01 of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986);

(viii)           Sugar covered under sub‑heading nos. 1701.20, 1701.31, 1701.39 and 1702.11 of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986);

(ix)       Unmanufactured tobacco and tobacco refuse covered under sub‑heading no. 2401.00, cigars and cheroots of tobacco covered under heading no. 24.02, cigarettes and cigarillos of tobacco covered under sub‑head­ing nos. 2403.11, and 2403.11 and other manufactured tobacco covered under sub‑heading nos. 2404.11, 2404.12, 2404.13, 2404.19, 2404.21, 2404.29, 2404.31, 2404‑39,2404.41,2404.50and2404.60 of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986)

(x)        Woven fabrics of wool covered under heading nos. 51.06,51.07,58.01, 58.02,58.03 and 58.05 of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986)

 

[(xi)* * *]

 

COMMENTS

"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 or produce things like pipes, man‑hole covers or bends, these cannot be regarded as "cast iron casting" in its primary or rough form, but products made out of cast iron castings. Such product cannot be regarded as "cast iron" and cannot be treated as "declared goods" under s. 14(iv) of the Central Sales Tax Act.‑ Vasantham Foundry v. Union of India 1995 (99) STC 87.

 

Sec. 15 of Central Sales Tax Act, 1956 is a code in itself, the observance of which is mandatory for the States while imposing tax on goods declared to be of special importance in inter‑State trade or commerce under s. 14 of the Act. By a combined reading of ss. 14 and 15 of the Central Sales Tax Act, 1956, the restrictions imposed are‑(i) in respect of declared goods a tax either on sale or purchase alone can be levied; and it cannot be on both sale and purchase; (ii) the rate of tax should not exceed 4 per cent; (iii) the tax can be levied only at one definite stage. The essence of a single point fixation or one stage fixation consists of fixation of that point. In other words, in respect of declared goods what is left to the State's domain is to determine whether the tax is to be imposed at the point of first sale or purchase or at any one of the successive points of sale or purchase.‑Premier Steels v. Asstt. Commissioner (Assessment) 1995 (97) STO 395.

 

When the commodity purchased by the dealer and which has suffered tax, is transformed into another distinct commercial commodity after purchase by the dealer and when it is used in the execution of the works contract since the two goods, viz., the commodity purchased by the dealer and the commodity used in the execution of works contract are distinct and different commercial commodities falling under two different sub‑items of an entry under s. 14 of the Central Sales Tax Act, the question of levying sales tax at more than one stage on the same commodity does not arise.‑Tamil Nadu Mosaic Manufacturers Association v. State of Tamil Nadu 1995 (97) STC 503.

 

Shoe tips, heels, tip toes, tip nails made of iron or steel are not plates both plain and chequered in all qualities within the meaning of sub‑s. (vii) of cl. (iv) of s. 14 of the Central Sale Tax Act, 1956.‑Jai Shakti Traders v. State of U.P. 1995 (97) STC 114.

 

A "wheel" must be capable of resolving on an axle. The cycle rim is not capable of revolving on an axle by itself without being fitted with spokes and hubs. In commercial circles also the cycle rim is not shown to be understood as a wheel. Therefore, cycle rims are not wheels within the meaning of s. 14(iv)(xiv) of the Central Sales Tax Act, 1956.‑Dewan Enterprises v. CST 1995 (96) STC 232.

 

Parched or fried gram not being declared goods, the restrictions under ss. 14 and 15 do not apply.‑Gopu Ram Gram Mill Co. v. State of A. P. 1994 (95) STC 358.

 

The expression "that is to say" is employed to make clear and fix the meaning of what is to be explained or defined. Such words are not used as a rule to amplify a meaning while removing a possible doubt for which purpose the word "includes" is generally employed. In the content of single point sales tax, subject to special conditions when imposed on separate categories of specified goods, the expression is apparently meant to exhaustively enumerate the kinds of goods given in a list. The purpose of an enumeration in a statute dealing with sales tax at a single point in a series of sales would be to indicate the types of goods each of which would constitute a saparate class for a series of sales.‑Rajasthan Roller Flour Mills Association v. State of Rajasthan 1993 (9 1) STC 408.

 

It is not permissible for the State Legislature to impose a tax on goods declared to be of special importance in inter‑State trade or commerce under s. 14 except in accordance with the restrictions and conditions contained in s. 15 of the Central Sales Tax Act. The state legislature cannot so frame its law as to convert an outside sale or a sale in the course of import and export into a sale inside the state.‑Larsen and Toubro Ltd. v. State of TN. 1993 (88) STC 289.

 

15.       Restrictions and conditions in regard to tax on sale or purchase of declared goods within a State

 

Every sales tax law of a State shall, insofar as it imposes or authorises the imposition of a tax on the sale or purchase of declared goods, be subject to the following restrictions and conditions, namely:-

(a)        the tax payable under that law in respect of any sale or purchase of such goods inside the State shall not exceed four per cent of the sale or purchase price thereof,

(b)        where a tax has been levied under that law in respect of the sale or purchase inside the State of any declared goods and such goods are sold in the course of inter‑State trade or commerce, and tax has been paid under this Act in respect of the sale of such goods in the course of inter‑State trade or commerce, the tax levied under such law shall be reimbursed to the person making such sale in the course of inter‑State trade or commerce in such manner and subject to such conditions as may be provided in any law in force in that State;

(c)        where a tax has been levied under that law in respect of the sale or purchase inside the State of any paddy referred to in sub‑clause (i) of clause (i) of section 14, the tax leviable on rice procured out of such paddy shall be reduced by the amount of tax levied on such paddy;

(ca)      where a tax on sale or purchase of paddy referred to in sub‑clause (i) of clause (i) of section 14 is leviable under the law and the rice procured out of such paddy is exported out of India, then, for the purposes of sub‑section (3) of section 5, the paddy and rice shall be treated as a single commodity

(d)        each of the pulses referred to in clause (via) of section 14, whether whole or separated, and whether with or without husk, shall be treated as a single commodity for the purposes of levy of tax under that law.

 

COMMENTS

Sec. 15(a) of the Central Sales Tax Act, 1956, prescribes certain restrictions upon the system of levy to be followed and the rate of tax to be imposed by a State while taxing declared goods. The section is a code in itself, the observance of which is mandatory for the states while imposing tax on goods declared to be of special importance in inter‑state Trade of Commerce under s. 14. By a combined reading of ss. 14 and 15 of the Central Sales Tax Act, the restrictions that imposed are‑(i) in respect of declared goods a tax either on sale or purchase alone can be levied and it cannot be on both sale and purchase; (ii) the rate of tax should not exceed 4 per cent; (iii) the tax can be levied only at one definite stage. The essence of a single point fixation or one stage fixation consists of fixation of that point. In other words, in respect of declared goods, what is left to the State's domain is to determine whether the tax is to be imposed at the point of first sale or purchase or at any one of the successive points of sale or purchase.‑Premier Steels v. Asstt. Commissioner (Assessment) 1995 (97) STC 395.

 

Whenever a commercial commodity which has suffered sales tax is transformed into another distinct commercial commodity, it becomes a separate and distinct commercial commodity for the purpose of levy of sales tax and it can be taxed again. In such a case s. 15(a) of the Central Sales Tax Act will have no application. When the goods used by the dealer in the execution of the works contract are commercially different from the goods purchased by the dealer, falling under different sub‑items of an entry under s, 14, the question of contravention of s. 15(a) of the Act, which prohibits levy of sales tax on declared goods at more than one stage does not arise.‑Tamil Nadu Mosaic Manufacturers Association v. State of Tamil Nadu 1995 (97) STC 503.

 

Sec. 15 of the Central Sales Tax Act, 1956, only places certain restrictions on the rate of tax and the stages of tax and the State law cannot place a larger burden on the tax payers, but the categorisation of the commodity concerned under the State law is relevant for determining the category under which the commodity falls. If under the State law, the rate of tax for the commodity is lower than four per cent, then the lower rate will have to be charged. If the state law levies tax at several stages of sales than in terms of s. 15 of the Act, in respect of declared goods, tax will have to be restricted only to one stage.‑Dewan Enterprises v. CST 1995 (96) STC 232.

 

Since s. 15(d) specifically amplifies the content of that sub item only to pulses referred to therein “Whether whole or separate and with or without husk” it is not permissible to read it as applicable to gram which has been parched or fried. Parched or fried gram not being declared goods, the restrictions and ss. 14 and 15 do not apply.‑Gopuram Gram Mill Co. Ltd. v. State of A. F 1994 (95) STC 358.

 

It is not possible for the State Legislature to impose a tax on goods declared to be of special importance in inter‑State trade or commerce under s. 14 of the Central Sales Tax Act except in accordance with the restrictions and conditions contained in s. 15 of the Act. The State legislature cannot so form it law as to convert an outside sale or a sale in the course of import and export into a sale inside the state.‑Larsen and Toubro Ltd. v. State of Tamil Nadu 1993 (88) STO 289.

 

LIABILITY IN SPECIAL CASES

 

16.       Definitions

 

In this Chapter,-

(a)        "appropriate authority", in relation to a company, means the authority competent to assess tax on the company;

(b)        "company" and "private company" have the meanings respectively assigned to them by clauses (i) and (iii) of sub‑section (1) of section 3 of the Companies Act, 1956 (1 of 1956),

 

17.       Company in liquidation

 

(1)        Every person,-

(a)        who is the liquidator of any company which is being wound up, whether under the orders of a court or otherwise; or

(b)        who has been appointed the receiver of any assets of a company (hereinafter referred to as the liquidator) shall, within thirty days after he has become such liquidator, give notice of his appointment as such to the appropriate authority.

(2)        The appropriate authority shall, after making such inquiry or calling for such information is it may deem fit, notify to the liquidator within three months from the date on which he receives notice of the appointment of the liquidator the amount which, in the opinion of the appropriate authority would be sufficient to provide for any tax which is then, or is likely thereafter to become payable by the company.

 

(3)        The liquidator shall not part with any of the assets of the company or the properties in his hands until he has been notified by the appropriate authority under sub‑section (2) and on being so notified, shall set aside an amount equal to the amount notified and, until he so sets aside such amount, shall not part with any of the assets of the company or the properties in his hands:

 

PROVIDED that nothing contained in this sub‑section shall debar the liquidator from parting with such assets or properties in compliance with any order of a court or for the purpose of the payment of the tax payable by the company under this Act or for making any payment to secured creditors whose debts are entitled under law to priority of payment over debts due to government on the date of liquidation or for meeting such costs and expenses of the winding up of the company as are in the opinion of the appropriate authority reasonable.

 

(4)        If the liquidator fails to give the notice in accordance with sub‑section (1) or fails to set aside the amount as required by, or parts with any of the assets of the company or the properties in his hands in contravention of the provisions of sub‑section (3), he shall be personally liable for the payment of the tax which the company would be liable to pay:

 

PROVIDED that if the amount of any tax payable by the company is notified under sub‑section (2), the personal liability of the liquidator under this sub‑section shall be to the extent of such amount.

 

(5)        Where there are more liquidators than one, the obligations and liabilities attached to the liquidator under this section shall attach to all the liquidators jointly and severally.

 

(6)        The provisions of this section shall have effect notwithstanding anything to the contrary contained in any other law for the time being in force.

 

18.       Liability of directors of private company in liquidation

 

Notwithstanding anything contained in the Companies Act, 1956 (1 of 1956), when any private company is wound up after the commencement of this Act, and any tax assessed on the company under this Act for any period, whether before or in the course of or after its liquidation, cannot be recovered, then, every person who was a director of the private company at any time during the period for which the tax is due shall be jointly and severally liable for the payment of such tax unless he proves that the non‑recovery ca ( to any gross neglect, misfeasance or breach of duty on his part in relation to the affairs of the company.

 

AUTHORITY TO SETTLE DISPUTES IN COURSE OF INTER‑STATE TRADE OR COMMERCE

 

19.       Central Sales Tax Appellate Authority

 

(1)        The Central Government shall constitute, by notification in the official Gazette, an Authority to settle inter‑State disputes falling under section 6A read with section 9 of this Act, to be known as "the Central Sales Tax Appellate Authority (hereinafter referred to as the Authority)".

 

(2)        The Authority shall consist of the following Members appointed by the Central Government, namely:-

(a)        a Chairman, who is a retired Judge of the Supreme Court, or a retired Chief Justice of a High Court;

(b)        an officer of the Indian Legal Service who is, or is qualified to be, an Additional Secretary to the Government of India; and

(c)        an officer of a State Government not below the rank of Secretary or an officer of the Central Government not below the rank of Additional Secretary, who is an expert in sales tax matters.

 

(3)        The salaries and allowances payable to, and the terms and conditions of service of, the Chairman and Members shall be such as may be prescribed.

 

(4)        The Central Government shall provide the Authority with such officers and staff as may be necessary for the efficient exercise of the powers of the Authority under this Act.

 

20.       Appeals

 

(1)        The provisions of this Chapter shall apply to appeals filed by the aggrieved dealer against any order of the assessing authority made under section 6A read with section 9 of this Act, which realtes to any dispute concerning the sale of goods effected in the course of inter‑State trade or commerce.

 

(2)        Notwithstanding anything contained in the general sales tax laws, the Authority shall adjudicate an appeal filed by a dealer aggrieved under sub‑section (1) within forty‑five days from the date on which order referred to in that sub‑section is served on him:

 

PROVIDED that the Authority may entertain any appeal after the expiry of the said period of forty‑five days, but not later than sixty days, from the date of such service, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.

 

COMMENTS

Sec. 163 of the Finance Act, 2003 has amended sec. 20 of the CST Act to enable a dealer to file appeal to the Central Authority against any order of the assessing authority only where an inter‑State dispute is involved. This should be done within forty‑five days from the date of service of the order which may be extended to sixty days if the appellant was prevented by sufficient cause from filing the appeal.

 

[(3) x x x]

 

(4)        The application shall be made in quadruplicate and be accompanied by a fee of five thousand rupees.

 

21.       Procedure on receipt of application

 

(1)        On receipt of an appeal, the Authority shall cause a copy thereof to be forwarded to the assessing authority concerned and to call upon it to furnish the relevant records:

 

PROVIDED that such records shall, as soon as possible, be returned to the assessing authority.

 

(2)        The Authority shall adjudicate and decide upon the appeal filed against an order of the assessing authority.

 

(3)        The Authority, after examining the appeal and the records called for, by order, either allow or reject the appeal:

 

PROVIDED that no appeal shall be rejected unless an opportunity has been given to the appellant of being heard in person or through a duly authorised representative, and '[also to each State Government] concerned with the appeal of being heard:]

 

PROVIDED FURTHER that whether an appeal is rejected or accepted, reasons for such rejection or acceptance shall be given in the order.

 

(4)        The Authority shall make an endeavour to pronounce its order in writing within six months of the receipt of the appeal.

 

(5)        A copy of every order made under sub‑section (3) shall be sent to the appellant and to the assessing authority.

 

COMMENTS

The Finance Act, 2003 vide its clause 164 had amended sec. 21 of the CST Act, to enable the Authority also to forward the copy of appeal to the concerned State Government and to call upon it to furnish relevant records. The records furnished by the State Government concerned shall be soon as possible be returned to it.

 

22.       Powers of the Authority

 

(1)        The Authority shall have the same powers as are vested in a court under the Code of Civil Procedure, 1908, while trying a suit in respect of the following matters, namely:-

(a)        enforcing the attendance of any person, examining him on oath or affirmation;

(b)        compelling the production of accounts and documents;

(c)        issuing commission for the examination of witnesses;

(d)        the reception of evidence on affidavits;

(e)        any other matter which may be prescribed.

 

(1A)     The Authority may grant stay of the operation of the order of the assessing authority against which the appeal is filed before it or order the pre‑deposit of the tax before entertaining the appeal and while granting such stay or making such order for the pre‑deposit of the tax, the Authority shall have regard, if the assessee has already made pre‑deposit of the tax under the general sales tax law of the State concerned, to such pre‑deposit.

 

(2)        Every proceeding before the Authority shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code and the Authority shall be deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.

 

23.       Procedure of Authority

 

The Authority shall, subject to the provisions of this Chapter, have power to regulate its own procedure in all matters arising out of the exercise of powers under this Act.

 

COMMENTS

 

The Finance Act, 2003 has amended section 23 of the CST Act to empower the Authority to regulate its procedure in respect of the stay of recovery of any demand also.

 

24.       Authority for Advance Rulings to function as Authority under this Act.

 

(1)        Notwithstanding anything contained in any other law for the time being in force and in section 19 of this Act, the Authority for Advance Rulings constituted under section 245‑Oof the Income‑tax Act, 1961 shall be notified by the Central Government in the Official Gazette, with such modifications as may be necessary, to make its composition in conformity with section 19 of this Act, as the Authority under this Act till such time an Authority is constituted under that section.

 

(2)        On and from the date of the constitution of the Authority in accordance with the provisions of section 19 of this Act, the proceedings pending with the Authority for Advance Rulings shall stand transferred to the Authority constituted under that section from the stage at which such proceedings stood before the date of constitution of the said Authority.

 

25.       Transfer of pending proceedings

 

On and from the date when the Authority is constituted under section 19, any proceeding arising out of the provisions contained in this Chapter-

(i)         which is pending immediately before the constitution of such Authority before the appellate authority constituted under the general sales tax law of a State or of the Union territory, as the case may be; or

(ii)        which would have been required to be taken before such Appellate Authority,

 

shall stand transferred to such Authority on the date on which it is established.

 

 26.      Applicability of order passed

 

An order passed by the Authority under this Chapter shall be binding on each State Government concerned, the assessing authorities and other authorities created by or under any law relating to general sales tax, in force for the time being in any State or Union territory.

 

COMMENTS

Clause 119 of the Finance (No. 2) Act, 2004 amended Chapter VI as directed to be inserted by section 3 of the CST (Amendment) Act, 2001, so as to restrict the jurisdiction of the Authority only to settle the inter State dispute falling under section 6A read with section 9 of the said Act. Amendment also confers power on Authority relating to grant of stay in appeal, etc.