ASHWANI KUMAR MISHRA,J. - (1.) Assessee is engaged in the business of manufacture and sale of Desi Ghee, dairy white powder and other milks products. It is aggrieved by an order of the Tribunal on following two counts:- (i) Construction materials purchased by it for erecting storage for its unit has not been treated to be 'capital goods', and thereby ITC on the purchase of cement, steel and other raw material is denied. (ii) At the time of survey conducted on 28.10.2009, one truck load of coal is found at the premises of assessee, and its value was quantified at Rs. 80,000/-. However, the authorities presumed that such coal was to be utilized for generation of milk products, and consequently, turnover of sales is increased by Rs. 80,00,000/-.
(2.) Learned counsel for the revisionist submits that the reasoning assigned in the order of Tribunal to discard its claim on the first count cannot be sustained, in view of the decision of this Court in The Commissioner, Commercial Tax, U.P. Lucknow v. S/s Ambuja Cement Ltd., Saharanpur, passed in Revision No.99 of 2017, decided on 19.4.2017. It is stated that the defence of revenue that only movable goods could be included in the definition of capital goods, has found favour with this Court. Submission is that for such reasons, the first part of the Tribunal's order cannot be sustained.
(3.) On the second aspect, learned counsel for the revisionist submits that the assessee had submitted before the authorities that the truck loaded with coal was actually rejected, as it was of good quality, but such explanation has been erroneously discarded. Learned counsel further submits that merely on account of existence of coal, the authorities could have presumed increase in the turnover of assessee by Rs. 80,00,000/-, particularly when no other material was found during survey.;