Bharati Sapru, J. - (1.) HEARD Sri Bharat Ji Agrawal, learned senior counsel assisted by Sri Arvind Saran Das and Shubham Agrawal, learned counsel for the revisionist and Sri U.K. Pandey, learned standing counsel for the State. As the controversy involved in these revisions is identical, the same is being decided by the common judgment and order treating the S.T.R. No. 4 of 2008 as the leading case.
(2.) THIS is an assessee's revision for the assessment year 2003 -04. The revisionist imported building and construction material under the terms of contract dated February 8, 2001 entered into between two parties, i.e., the applicant and the National Highway Authority of India. The Tribunal has not believed the contention of the assessee that the cement which was brought in within the State for the purpose of use in the works contract. The questions of law Nos. 2, 3 and 5 have been referred, which are hereunder: (2) Whether since the source of supply of material in the name of supplier and its place having been identified and approved by NHAI in accordance with the terms and conditions of the contract, hence the movement of the goods so approved from outside the State of U.P. directly to the site are covered by the principles of law laid down in the case of Santosh & Company, [1999] UPTC 823, the I.T.C. Classic Finance and Services and the Tribunal was not justified in not excluding the value of the said goods? (3) Whether the Trade Tax Tribunal has committed an error of law in holding that the cement and other goods which were purchased from outside the State of U.P. and were bought directly to the site for the execution of the works contract do not bear any mark of identification, even though admittedly, on all the documents relating to the said goods, the consignee was IRCON A/c NHAI with the address of the site, hence in view of the law laid down by this honourable court in the case of Santosh & Company, New Delhi v. Commissioner of Trade Tax, [1999] UPTC 823 and Commissioner of Trade Tax v. Indian Railway Constructions Company Limited : [2007] 6 VST 374 (All) : [2005] UPTC 984, the value of such goods are liable to be excluded from the gross -turnover? (5) Whether the Trade Tax Tribunal was justified in not considering the various documents which are already on record? I have heard learned counsels on both side and have perused the material on record. The material on record clearly reflects that it was a prior contract under which the applicant was bringing construction material within the State of U.P. including cement. The Tribunal has recorded that cement was brought in within the State of U.P.
(3.) THE Tribunal has simply recorded a finding that the cement was brought into the State of U.P. Other than that no finding has been recorded by the Tribunal that the cement was not used in the works contract or that it was misused by the applicant.;