Decided on March 15,2016

Klip Nail Care Respondents


- (1.) In all these applications, the Tribunal has referred the following question of law for opinion and answer of this court:- "Whether on facts and circumstances of the case, the Tribunal was justified in law in holding that the assessment orders were non-est orders even though the person Mrs. Janaki Soman, proprietress of the business has accepted the notices, attended the assessment proceedings as well as the first appeal proceedings and has not challenged the legality of notice on the ground of issuing it in the trade name before the assessing authority, revisional authority as well as the first appellate authority only on the ground that the notices were issued in the 'trade name' -
(2.) We take the facts, as they are stated to be common to all the references, from Sales Tax Reference No. 4 of 2009. The applicant sought a reference of the above question because the respondent in this case, though duly served and absent, was a dealer. The respondent was carrying on business in the trade name and style as M/s. Klip Nail Care and manufacturing nail cutters under this name and style. The respondent was registered as a dealer and holding a registration certificate under both, the Bombay Sales Tax Act, 1959 (for short "the BST") and the Central Sales Tax Act, 1956 (for short "the CST"). The registrations were ultimately cancelled with effect from 1st April, 2000 owing to losses in the business. The assessment period from 14th January, 1992 to 31st March, 1992, 1992-93, 1993-94, 1994-95 and 1995-96 under the BST and for the period 1992-93, 1993-94 and 1994-95 under the CST was the period involved.
(3.) The assessing authority held that the nail cutters manufactured by the dealer are covered by Entry C-II-152 and liable to tax at the rate of 10%. However, the Commissioner of Sales Tax, Pune Division, Pune took a view that the goods are used for personal grooming and, therefore, they are nothing but toilet articles within the meaning of Entry 86 of Schedule C part II and attract sales tax at the rate of 15%. He, therefore, initiated revisional proceedings taking recourse to section 57 by issuing a notice in form 40. As the dealer failed to respond to the notice, the matter proceeded ex-parte and that is how original assessment came to be revised. Being aggrieved and dissatisfied by this revisional order, the dealer preferred First Appeal before the Deputy Commissioner of Sales Tax (Appeals), Pune. The Deputy Commissioner also confirmed the finding of the revisional authority that the impugned product, namely, nail cutter falls under Entry 86 of Schedule C Part II and attracts sales tax at the rate of 15%. However, he refused the interest under section 36(3)(b) of the BST. Not satisfied with these orders, the dealer preferred Second Appeals before the Tribunal. The Second Appeals were allowed on 9th September, 2005 and the first appellate order dated 5th December, 2002 as also the revisional order dated 31st March, 1999 came to be set aside.;

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