Manoj Construction Co. Vs. Commissioner of Cus. and C. Ex. - Court Judgment

Excerpt:

.....that no tax at all would be payable as the tax has been held to bean indivisible one. a distinction must be borne in mind between an indivisible contract and a composite contract. if in a contract, an element to provide service is contained, the purport and object for which the constitution had to be amended and clause 29a had to be inserted in article 366, must be kept in mind. a transaction of present nature was not contemplated. a legal fiction is created by reason of the said provision. such a legal fiction, as is well known, should be applied only to the extent for which it was enacted. it, although must be given its full effect but the same would not mean that it should be applied beyond a point which was not contemplated by the legislature or which would lead to an anomaly or absurdity. in a case where the application of a parliamentary and a legislative act comes up for consideration; endeavours shall be made to see that provisions of both the acts are made applicable. it is, therefore, difficult to hold that in a case of this nature, sales tax would be payable on the value of the entire contract; irrespective of the element of service provided. order1. the order of the tribunal, which is the subject matter of this appeal, was passed ex-parte, in the absence of the appellant. 2. it is the contention of the appellant that it had no notice of the proceedings before the tribunal. the learned attorney general fairly states that, in the circumstances and having regard to what has been stated by the appellant in the additional affidavit dated 18th november, 2000, it is appropriate that the order under challenge should be set aside and the matter restored to the file of the tribunal to be heard and decided afresh. 3. the appeal is allowed. the order under challenge is set aside on the ground of lack of notice. the appeal is restored to the file of the tribunal, new delhi to be heard and decided afresh. the parties shall appear before the president of the tribunal on 22nd april, 2002 at 11.00 a.m. to take from her a date for the hearing of the appeal. 4. no order as to costs.

Judgment:

ORDER

1. The order of the Tribunal, which is the subject matter of this appeal, was passed ex-parte, in the absence of the appellant.

2. It is the contention of the appellant that it had no notice of the proceedings before the Tribunal. The learned Attorney General fairly states that, in the circumstances and having regard to what has been stated by the appellant in the additional affidavit dated 18th November, 2000, it is appropriate that the order under challenge should be set aside and the matter restored to the file of the Tribunal to be heard and decided afresh.

3. The appeal is allowed. The order under challenge is set aside on the ground of lack of notice. The appeal is restored to the file of the Tribunal, New Delhi to be heard and decided afresh. The parties shall appear before the President of the Tribunal on 22nd April, 2002 at 11.00 a.m. to take from her a date for the hearing of the appeal. 4. No order as to costs.