- (1.) Heard the learned Counsel for rival parties.
(2.) The Maharashtra Sales Tax Tribunal, Mumbai vide its order dated 21.06.2002 for the assessment year 1992-1993, in exercise of powers under Section 61 of the Bombay Sales Tax Act, 1959 (in short "BST Act, 1959) has referred the following questions of law for the opinion of this Court: (a) Whether on the facts and circumstances of the case and on true and correct interpretation of the provisions in Section 55 of the Bombay Sales Tax Act, 1959, the Tribunal was justified in holding that the order passed by the appellate Deputy Commissioner levying for the first time the penalty under Section 9(2A) of the Central Sales Tax Act, 1956 read with Section 36(3)(d) of the Bombay Sales Tax Act, 1959 was passed in the second appeal in exercise of the powers under Section 55 of the Bombay Sales Tax Act, 1959 (b) Whether, on the facts and circumstances of the case and on true and correct interpretation of Section 36(3)(c) of the Bombay Sales Tax Act, 1959, the Tribunal was justified in holding that the order passed by the appellate Deputy Commissioner levying for the first time penalty under Section 9(2A) of the Central Sales Tax Act, 1956 read with Section 36(3)(d) of the Bombay Sales Tax Act, 1959 was not an original order passed in exercise of the powers under Section 36 of the Bombay Sales Tax Act, 1959 (c) Whether on the facts and circumstances of the case and on true and correct interpretation of the provisions in the Section 55 of the Bombay Sales Tax Act, 1959, the Tribunal was justified in holding the appeal against penalty levied for the first time by the appellate Deputy Commissioner, as a third appeal and in dismissing it on the ground of its being not maintainable
(3.) The statement of case sent by the Tribunal states that, the Applicant, who was appellant in Second Appeal No. 159/2000 before the Tribunal is a dealer registered under the provisions of the BST Act, 1959 as well as the Central Sales Tax Act, 1956 (in short the CST Act, 1956). The Applicant was assessed for the financial year 1992-1993 by virtue of the assessment order dated 30.03.1996 passed by the Sales Tax Officer. In the said assessment order, the Assessing Authority had inter-alia levied interest under Section 9(2) of the CST Act, 1956 read with Section 36(3)(b) of the BST Act, 1959 at Rs. 4,60,774/-. Disputing inter-alia, levy of interest, the Applicant filed an appeal against the said assessment order before the Assistant Commissioner of Sales Tax (Appeals). On the basis of the C-Forms produced in the first appeal proceedings, the first appellate authority i.e. Assistant Commissioner of Sales Tax reduced the tax liability, as also the quantum of interest. Accordingly, the interest amount was reduced from Rs. 4,60,774/-to Rs. 87,151/-. Against the said interest amount retained at Rs. 87,151/-, the Applicant filed second appeal before the Deputy Commissioner (Appeals), Mumbai. It was contended before the Deputy Commissioner that the said interest is not legally leviable in view of the Apex Court's judgment in case of India Carbon Ltd. v. State of Assam, 1997 6 SCC 479. This contention was accepted by the Deputy Commissioner. However, while deleting the interest, the Deputy Commissioner replaced it with equivalent amount of penalty under Section 9(2A) of the CST Act, 1956 read with Section 36(3)(d) of the BST Act, 1959.;