RAJIV SHAKDHER, J. - (1.) These are two revision petitions directed against a common judgment and order passed by the Sales Tax Appellate Tribunal (Additional Bench), Coimbatore (in short, "the Tribunal"), dated May 26, 2014. The petitioner, before us, is the assessee, i.e., M/s. Jansons Textiles Processors (in short, "JTP"). 1.1 These revision petitions pertain to the assessment years 2001-02 and 2002-03. 1.2 The revision petitions were admitted on September 19, 2014, when, the following common question of law was framed : "Whether penalty under section 23 of the Tamil Nadu General Sales Tax Act is imposable when the ingredients of section 45(2)(e) of the Tamil Nadu General Sales Tax Act, 1959, more particularly the words 'fails without reasonable excuse to make use of the goods for the declared purpose', has not been satisfied?" 1.3 During the course of arguments, learned counsels for the parties agreed that an additional question of law, ought to be framed, which is : "Whether in the given facts and circumstances of the case, under section 23 of the 1959 Act, the assessing officer could have straight away impose penalty on the assessee at the maximum rate of 150 per cent.?"
(2.) In order to adjudicate upon the captioned revision petitions, the folio- wing brief facts are required to be noticed : 2.1 JTP claims to be a works contractor which, processes cotton fabrics. For this purpose, they purchased furnace oil and hytherm oil against form XVII. The JTP thus, claim a concessional rate of tax, as provided in section 3(3) of the Tamil Nadu General Sales Tax Act, 1959 (in short, "the 1959 Act"), on the ground that furnace oil and hytherm oil, was used by them in processing cotton fabrics. The Revenue, found fault with it and accordingly, issued a show-cause notice. 2.2 We are told, a reply was filed and after a hearing was held in the matter, two separate adjudication orders of even date, i.e., October 25, 2004 were passed. By virtue of the said adjudication orders, the adjudicating authority, came to the conclusion that JTP had misused the declaration as contained in form XVII and thus, directed levy of penalty under section 23 of the 1959 Act. Consequent thereto, penalty at the rate of 150 per cent of the tax due was proposed. 2.3 Resultantly, in absolute terms, penalty in the sum of Rs. 1,87,028 was levied in respect of the assessment year 2001-02, while, in respect of the assessment year 2002-03, penalty amounting to Rs. 2,19,515 was levied. 2.4 Being aggrieved, JTP preferred an appeal with the Appellate Assistant Commissioner (CT) (FAC) (in short, "AAC"). The Commissioner by a common order dated December 29, 2004, consciously, set aside penalty, in respect of, both the assessment years.
(3.) The Revenue, being aggrieved, carried the matter in appeal to the Tribunal. The Tribunal after examining the matter at length, came to the conclusion that the concessional rate of tax was available against Form XVII only in respect of those assessees' who manufactured their own goods. 3.1 The Tribunal found that JTP had processed yarn and cloth, which was supplied to its buyers/customers and therefore, in terms of section 3(3) of the 1959 Act, it was not entitled to the concessional rate of tax. Based on this reasoning, the Tribunal came to the conclusion that there was a clear violation of section 45(2)(e) of the 1959 Act and thus, penalty under section 23 of the very same Act, was warranted. 3.2 In other words, in effect, the Tribunal sustained the order of the first appellate authority, i.e., the AAC, with regard to levy of penalty, in respect of furnace oil and hythenn oil purchased by JTP against Form XVII. ;