- (1.) These are two revisions under section 11 of the U. P. Trade Tax Act, 1948 (hereinafter referred to as "the Act") are directed against the order of the Tribunal dated June 11, 2003 for the assessment years 1994-95 and 1995-96 both under the Central Sales Tax Act, 1956. Heard Sri K. Saksena, learned counsel for the applicant and Sri B. K. Pandey, learned standing counsel.
(2.) The applicant was carrying on the business of polyester staple fibre and staple fibre waste. According to the learned counsel for the applicant for both the assessment years, the applicant had deposited the tax on the turn over of inter-State sales of stable fibre waste at four per cent as the rate of tax was not settled and ultimately settled by this Court. This court in the case of assessee itself, Swadeshi Polytex Limited v. CTT,1995 NTN 538, has held that staple fibre waste is also staple fibre and liable to tax at two per cent and along with surcharge at 2.5 per cent. He further submitted that the tax has been calculated on the turnover in accordance with formula given in section 8A of the Central Sales Tax Act (hereinafter referred to as the "the Central Act") taking tax at the rate of two per cent only. Accordingly, at the time of assessment proceedings, the tax at 2.5 per cent had been admitted. The assessing authority had levied the tax at two per cent. The applicant claimed refund of the excess amount deposited towards the tax, which has been denied under section 29A of the Act. According to the applicant tax had been paid on the net turnover determined as per the formula under section 8A of the Central Act. Being aggrieved by the order of the assessing authority, the applicant filed two appeals before the Deputy Commissioner (Appeals). Both the appeals have been dismissed. The applicant further filed two appeals before the Tribunal. The Tribunal by the impugned order, has dismissed both the appeals. The case of the applicant was that it had not realised any amount from its customers and, therefore, the provisions of section 29A of the Act does not apply. It is further contended that the tax has been paid on the turnover determined under the statutory formula contemplated under section 8A of the Central Act and merely because the tax payable was deducted from the amount realised from the customers towards the sale consideration to arrive to the net turnover, it cannot be presumed that the tax had been realised. The Tribunal has held that the applicant had not paid the tax on the turnover determined as per the formula given under section 8A of the Central Act and claimed deduction of the amount from the amount realised from the customers shows that the tax has been realised from the customers. Applying the provisions of section 29A of the Act refund has been denied.
(3.) The learned counsel for the applicant submitted that no tax had been realised from the customers in the bill, which is not in dispute. The first appellate authority has sought report from the assessing officer about the realisation of tax on the bills and the assessing authority on the examination of all the bills reported that no tax had been charged on the bills. The tax had been paid at 2.5 per cent was payable on the net turnover determined under section 8A of the Central Act. Section 8A of the Central Act does not provide levy of the tax on the tax and, therefore, the deduction of the amount of tax is contemplated from the sale consideration. The determination of the net turnover is statutory and it does not lead to the conclusion that the applicant had realised tax from the customers. He submitted that in any view of the matter, it cannot be inferred that the excess tax over and above two per cent has been realised and the net turnover has also been determined taking the two per cent tax. He further submitted that the presumption that the tax has been realised from the customer is based on no material.;