- (1.) -This revision under section 11 of the U. P. Trade Tax Act, 1948 (called the, "Act" for short) is against the order of the Tribunal dated July 22, 2003 for the assessment year 1997-98.
(2.) Apart from other items, the applicant was carrying on the business of manufacture and sales of beer. It appears that the applicant, in the bill itself, has charged security at the rate of Rs. 42 per dozen bottle from its purchasers. The said security was refundable on the return of the bottles and in case bottles would not be returned, the security would be forfeited. The assessing authority levied tax on the entire amount of security following the decision of the apex court in the case of Kalyani Breweries Ltd. v. State of West Bengal, 1997 107 STC 190.
(3.) Being aggrieved by the order, the applicant filed an appeal before the Deputy Commissioner (Appeals). The Deputy Commissioner (Appeals) has confirmed the levy of tax on the security amount. The applicant filed second appeal before the Tribunal. Before the Tribunal it was contended that the scheme of charging security has been started with effect from April 1, 1997 and in respect of which the letter dated March 25, 1997 has been written to the sole selling agent, M/s. Max Trading Company, against which M/s. Max Trading Company had written an acceptance letter dated March 28, 1997. On the basis of the aforesaid communication a sum of Rs. 42 per dozen bottle has been charged towards security. Therefore, the said amount of security was not liable to tax in view of the law laid down by the apex court in the case of United Breweries Ltd. v. State of Andhra Pradesh, 1997 105 STC 177. It was further submitted that the entire amount of security could not be subject to tax. At the most, the amount, which has been forfeited, would be liable to tax in case of non-return of the bottles. The Tribunal, by the impugned order, has remanded back the matter to the assessing officer. The Tribunal has held that the assessing authority has committed a mistake in levying the tax on the entire amount of security. It is further observed that the assessing authority has not examined the books of account and has not determined that how much amount has been forfeited and how much amount has been returned. The Tribunal, however, has held that the security amount, which has been forfeited on account of non-return of the bottles, is liable to tax in view of the decision of the apex court in the case of Kalyani Breweries Ltd. : [1997] 107 STC 190 (SC).;