Decided on May 01,2009



J. Shyam Sundar Rao, Chairman - (1.) THIS is an appeal filed against the orders of Appellate Deputy Commissioner (CT), Hyderabad Rural Division, Hyderabad in Appeal No. R/19/2003 -04, dated 09 -12 -2003. The appellant is M/s. United Breweries Limited, Nacharam, Hyderabad. It is on the rolls of Commercial Tax Officer, Nacharam, Hyderabad. The Commercial Tax Officer passed final assessment order for the assessment year 1998 -1999 under the provisions of APGST Act dated 28th November, 2001. On further verification of the assessment record, it is noticed by the assessing authority that the assessee company purchased Carbon Dioxide (CO) for a sum of Rs. 1,23,981/ - during the assessment year 1998 -99 at concessional rate by using 'G' forms. It has been observed that purchase of gas by issuing 'G' forms has been withdrawn with effect from 31 -7 -1996 by Notification issued in the G.O.Ms. No. 625, dated 31 -7 -1996. Hence, the Commercial Tax Officer by order dated 31 -3 -2003 levied penalty of Rs. 1,23,981/ -. Aggrieved by the same, appeal was preferred before the Appellate Deputy Commissioner (CT), Hyderabad Rural Division, Hyderabad. The ADC by his order dated 09 -12 -2003, dismissed the appeal. Aggrieved by the same, the present appeal is preferred before this Tribunal.
(2.) IN the appeal grounds it has been contended as follows: The authorities below cannot find fault with the appellant for use of 'G' forms. As per Rule 30 -B, the appellant is entitled to purchase goods and issue 'G' forms there for as per G2 Registration Certificate. In fact, CO 2gas was deleted from appellant's certificate with effect from 28 -12 -1999. Hence, levy of penalty is illegal. Apart from it, the penalty proceedings are belated and barred by time. In the absence of prescribed limitation period for levy of penalty under Section 5B, it is settled law that action should be taken within reasonable time. The Commercial Tax Officer, Musheerabad Circle was informed of the use of CO2 gas vide letter dated 14 -10 -1999. The penalty proceedings are initiated nearly four years later. Moreover, the utilization of 'G' forms by the Petitioner is within the knowledge of assessing authority. The Appellate Deputy Commissioner should have followed the decision of the Sales Tax Appellate Tribunal in TA No. 401/94, dated 19 -1 -1995 (M/s. Castrol India case), wherein it was held that when certain goods are eligible as per Section 5B does not ipso facto cancel the items in G2 registration certificate, unless expressly deleted by the Officers. At the time of hearing, the learned counsel for the appellant contended that the Petitioner is having manufacturing unit and so much so the Petitioner used CO as raw -material for manufacture of beer. It is therefore argued that Section 5(B)(2)(ii) of the APGST Act has no application. It is argued that Section 5(B)(2)(ii) can be invoked if it had no manufacturing unit or in alternative that the raw -material so purchased under 'G' form had been resold. Reliance had been placed by the counsel on the decision of this Tribunal in T.A. No. 739/02, dated 3 -11 -2008 in the case of M/s. Bhagyalakshmi Vegetable Products Limited, Adoni.
(3.) HOWEVER , the State Representative contends that in view of G.O.Ms. No. 625, dated 31 -7 -1996 Gas cannot be purchased against 'G' forms and as the appellant misused the 'G' forms, penalty is correctly levied.;

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