MERLIN WINES Vs. STATE OF A.P.
SALES TAX TRIBUNAL
STATE OF A.P.
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R. Bayapu Reddy, Chairman -
(1.) THESE four appeals are filed by the same appellant questioning the respective re -assessment orders of the Deputy Commissioner who revised the orders of the assessing authority under Sec. 14(4) and subjected the disputed turnovers to tax and refused to consider the claim of exemption on some turnovers relating to excise duty and also levied penalty under Sec. 14(8). The particulars of the present appeals are as follows:
(2.) THE appellant is M/s. Merlin Wines, Vijayawada, who is a dealer in liquor and beer. During the assessment year 1983 -84, the assessing authority passed separate assessment orders for the period from 1 -4 -1933 to 31 -10 -1983 and for the period from 1 -11 -1983 to 31 -3 -1984 subjecting the turnovers arrived at by him to tax relating to sales of liquor. The Deputy Commissioner passed separate re -assessment orders relating to the said two assessment periods by adding certain turnovers which are said to have escaped assessment in the hands of the assessing authority. Relating to the period from 1 -4 -83 to 31 -10 -83 concerned in T.A. 292/89 a turnover of Rs. 3,29,885/ - was added as escaped turnover on the ground that the appellant had under invoiced the sales to that extent by showing lesser price in the sale invoices A turnover of Rs. 4,71,985/ - was added as suppressed turnover relating to cost of bottles, cartons etc., which was not assessed by the assessing authority in the hands of the appellant. A turnover of Rs. 96,337/ - was also added by the Deputy Commissioner regarding credit notes issued by the appellant relating to discount granted by him to his purchasers at the end of the assessment period. Similarly for the period from 1 -11 -1983 to 31 -3 -1934 concerned in T.A. 293/89, the Deputy Commissioner added a turnover of Rs. 2,86,170/ - as suppressed turnover relating to service charges for packing, a turnover of Rs. 2,37,250/ - towards credit notes issued by the appellant to his purchasers relating to the discount given at the end of the assessment period and a turnover of Rs. 7,89,370/ - as escaped turnover due to under -invoicing the sales of liquor. During the course of reassessment proceedings, while filing replies to the show cause notices issued by the Deputy Commissioner, the appellant raised the plea that the amount of Rs. 16,19,274/ - and Rs. 29,19,539/ - were paid by him during the assessment periods from 1 -4 -83 to 31 -10 -83 and from 1 -11 -84 to 31 -3 -84 respectively towards excise duty, that such excise duty which was paid by him during those periods was considered as taxable turnover in the hands of the manufacturers namely Mc. Dowell & Co. as such excise duty, even though paid by the purchaser is to be treated as taxable turnover in the hands of the manufacturers, that therefore such turnovers relating to excise duty paid by him cannot be once again assessed to tax in his hands, that the assessing authority has however subjected such turnovers to tax in his hands and that therefore, such turnovers may be deleted from his assessments by the Deputy Commissioner. The Dy. Commissioner, however refused to consider such claim of the appellant relating to excise duty on the ground that he had initiated proceedings for re -assessment under sec. 14(4) of the Act and that he cannot entertain such claim of the appellant in such re -assessment proceedings for deletion of the turnovers from the assessment relating to which the s of the assessing authority had become final. T.A. Nos. 292/89 and 293/89 are filed by the appellant questioning the addition of the disputed turnovers by the Deputy Commissioner in both the matters as well as the orders of the Deputy Commissioner refusing to consider his claim for deleting the turnovers relating to excise duty from the assessments. Consequent on the re -assessment orders passed under section 14(4) the Deputy Commissioner also passed penalty orders relating to both periods under Sec. 14(8) levying penalty of Rs. 6,74,775/ - relating to the period from 1 -4 -1983 to 31 -10 -1983 and penalty of Rs. 9,05,067/ - relating to the period from 1 -11 -1983 to 31 -3 -1984 at three times of the tax due on the suppressed turnover. The appellant has preferred T.A. 400/89 and T.A. 399/89 respectively questioning such levy of penalty. As the points involved for consideration in all the appeals are the same and as the appellant is also the same, they are heard together and are being disposed of by a common order.
(3.) THE points for consideration in the present appeals are: - -
i) Whether the orders of the Deputy Commissioner adding the suppressed turnover on various counts are not valid and legal and are liable to be set aside?
ii) Whether the orders of the Deputy Commissioner refusing to consider the claim of the appellant for deletion of the turnovers relating to payment of excise duty are not valid and legal and are liable to be set aside?
iii) Whether the orders levying penalty are not valid and legal?;
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