- (1.) WE have heard the learned advocates appearing for the parties.
(2.) THIS application is directed against an order passed by the learned Tribunal on July 18, 2008, with regard to the question of disallowance of "facility charges" by the authorities. The petitioner filed an application before the learned Tribunal under Section 16 of the West Bengal Taxation Tribunal Act, 1987, for review of the order which was passed by the learned Tribunal in an earlier revision case on November 30, 2007. The learned Tribunal after considering the said point which was urged before the learned Tribunal, came to the conclusion on the admitted facts that the petitioner maintained a factory at Asansol and the petitioner supplied industrial gases from its Asansol factory to the factory of the Indian Iron and Steel Co. Ltd. (hereinafter referred to as, "the IISCO") at Burnpur through pipeline. The petitioner has specifically stated before the learned Tribunal at the time of the review petition filed by it that liquid oxygen was supplied from its Durgapur factory to IISCO at Burnpur and sales were completed after measurement of liquid oxygen at Burnpur. Thereafter, it is claimed in the review application that liquid oxygen was converted into gaseous form with the help of plant and machinery installed at the IISCO site and further the conversion activities were nothing but post -sale activities and therefore, it would not attract the sale price as defined under the Act in question. On November 30, 2007 the learned Tribunal duly considered that aspect of the matter and observed that agreeing with the petitioner as quoted above, that the oxygen in gaseous form is manufactured at its Asansol factory and thereafter supplied to IISCO's works at Burnpur through pipelines. The Tribunal decided the dispute in favour of the Revenue relying on the point that the cost of anything done before sale is complete shall be within the sale price as defined in Section 2(h) of the Bengal Finance (Sales Tax) Act, 1941. The assessing officer as well as the appellate authority relied on the definition of "sale price" as envisaged in Section 2(h)(i) of the Bengal Finance (Sales Tax) Act, 1941. The petitioner relied on the definition of "sale" as contained in Section 2(g) (ii) of the Act. According to the Revenue if any sum is charged for anything done by a dealer in respect of any goods before delivery thereof, such sum shall be within the definition of "sale price". The contention of the petitioner is that the plant and machinery and the pipelines were embedded on the earth and hence immovable goods and any consideration received from the use of such immovable goods is not exigible to tax. The learned members of the Board observed in the revision case order dated September 17, 2002 in para 16 that "on examination of the orders so passed by the authorities below, we do not find that the machinery in question used by the customer were embedded to earth". The statement in view of the orders passed by the assessing officer as well as the appellate authority is not fully correct. Both these authorities never raised any question whether the plant and machinery and pipelines were embedded in earth or not. Their approach is different from the approach of the petitioner as well as the learned members of the Board. The Tribunal, in its judgment dated November 30, 2007 has categorically stated "neither the argument of the petitioner nor the direction of the learned members of the Board for causing inspecting to see whether the pipes and other things are embedded in the earth is acceptable to us". The order for inspection appeared to the Tribunal irrelevant. Thus, the Tribunal held "it appears to us that there is neither apparent mistake of fact or mistake of law on this point of dispute in the original judgment dated November 30, 2007".
(3.) IT appears to us that the learned Tribunal duly decided the question at the time of hearing of the application and disposed of the same holding against the petitioner at that point of time. Subsequent thereto, this review petition was filed and the learned Tribunal after considering the facts came to the conclusion as follows: The present application for review is filed by the petitioner on two points : disallowance of claim of exemption from payment of tax on facility charges received and disallowance of claim of concessional rate of tax against a number of declaration forms produced. The above two points of dispute have already been discussed hereinbefore and it appears to us that there is neither apparent mistake of fact nor mistake of law in the order passed on November 30, 2007. Accordingly, the review application filed under Section 16 of the West Bengal Taxation Tribunal Act, 1987, is rejected. Thus, the application is disposed of but under the facts and circumstances of the case without any order as to costs.;