B. S. KAPADIA, J. - (1.) THE Sales Tax Tribunal has referred the following two questions to this Court under section 69 (1) of the Gujarat Sales Tax Act, 1969 : " (1) Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the ground of appeal in respect of the levy of purchase tax under section 16 (1) of the Gujarat Sales Tax Act, 1969, in respect of purchase of packing materials against certificates in form 19, was not entertainable ? (2) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the ground regarding they levy of penalty under section 45 (1) and 45 (6) of the Gujarat Sales Tax Act, 1969, in respect of the purchase tax under section 16 (1) of the Act levied on the packing materials purchased against form 19, was not entertainable ?"
(2.) THE facts leading to the aforesaid reference in brief can be stated as under : The applicant is a limited company engaged in the business of manufacturing and selling conveyors and elevators and other machines in the township of Vallabh Vidyananger. The applicant-company also undertakes job-work and is a dealer registered under the Gujarat Sales Tax Act, 1969 (hereinafter referred to as "the Act" ). In the year 1974 the applicant sold some of its manufactured goods to the Gujarat Electricity Board free of tax against certificate in form C and to new industry against certificate in form "z" without charging any tax on such sales. The applicant is a holder of recognition granted under section 32 of the Act and as such it purchased certain goods free of tax on the strength of certificate in form 19 and used some of them in the manufacture of goods so sold by it to the Gujarat Electricity Board and new industry. In using the goods so purchased against certificates in form 19 in such a manner the applicant had committed breach of recitals of the said certificates in form 19 and therefore, it had exposed itself to the levy of purchase tax as provided in section 16 (1) of the Act. The Sales Tax Officer thereafter levied purchase tax amounting to Rs. 1,09,741 in so far as the breach related to relevant sales made to the Gujarat Electricity Board as also to new industry. On account of utilisation of the goods purchased against certificates in form 19 in job-work executed by the applicant, purchase tax levied in assessment under section 16 (1) of the Act amounted to Rs. 6,947. The last category of purchase tax in assessment related to purchase of wooden sizes made by the applicant against certificates in form 19 and used them as packing materials of the goods so manufactured and sold by it. This purchase tax amounted to Rs. 18,087. Aforesaid levies of purchase tax put together came to Rs. 1,34,775 and together with other levy made in assessment augmented the tax liability of the applicant so as to attract penalty under section 45 (6) of the Act. The Sales Tax Officer therefore imposed penalty on that count amounting to Rs. 40,898. The Sales Tax Officer also invoked section 45 (1) of the Act and an additional penalty of Rs. 9,434. 25 was imposed by him under that section while finalising the assessment order on October 23, 1978.
(3.) THE applicant-assessee preferred an appeal before the learned Assistant Commissioner against the aforesaid order of assessment. In view of the ratio of the decision of this Court in the case of Nowroji N. Vakil and Co. v. State of Gujarat [1979] 43 STC 238, the learned Assistant Commissioner held that there being clear beach of recitals in using goods purchased on the tax-free basis in job-work, purchase tax of the second category was attracted positively under section 16 (1) of the Act. Similarly, the learned Assistant Commissioner did not accept the applicant's contention regarding the sales made to the Gujarat Electricity Board as also to new industry. It appears that before the learned Assistant Commissioner in appeal the learned advocate appearing for the applicant-assessee gave in writing the following submission on August 13, 1979 : " The question of going into the factual as well as legal aspects of the matter in so far as it related to the purchase tax of tax of this category, as well as a question of sitting on judgment in that respect did not therefore, arise before the learned Assistant Commissioner in appeal. ";