Chitra Venkataraman, J.

The assessee is on revision as against the common order passed by the Sales Tax Appellate Tribunal relating to the assessment years 1982 to 1986.

2. T.C.Nos.640 of 2006 and 1730 of 2008 relating to assessment year 1982-83; T.C.Nos.644 of 2006 and 1738 of 2008 relating to assessment year 1983-84; T.C.Nos.641 of 2006 and 637 of 2006 relating to assessment year 1984-85 and T.C.Nos.639 of 2006 and 1662 of 2008 relating to assessment year 1985-86, raises the common question of law as to whether the Vend Fee paid by the licencee-TAMIL NADU STATE MARKETING CORPORATION LIMITED (in short 'TASMAC') was to be included in the taxable turnover of the assessee.

3. Whereas T.C.No.1634 of 2008 relating to assessment year 1983-84; T.C.No.1712 of 2008 relating to assessment year 1984-85 and T.C.No.1729 of 2008 relating to assessment year 1985-86 raises the question regarding levy of penalty under Section 12(5)(iii) of the Tamil Nadu General Sales Tax Act,1959 in respect of revision of assessment.

4(a). The question of law framed on the Vend Fee inclusion is as follows :

Whether the Vend Fee imposed and collected by the Government under Rule 15 of the Tamil Nadu Indian Made Foreign Spirits (Supply by Wholesale) Rules, 1981 from the Tamil Nadu State Marketing Corporation Limited is an exaction on the said purchaser-wholesale Corporation so that the said Vend Fee, which was neither contracted or collected by the petitioner-manufacturers, is outside the sale price of the petitioners?

(b) The question of law raised in T.C.No.1634 of 2006 relating to levy of penalty under Section 12(5)(iii) of the Tamil Nadu General Sales Tax Act, 1959 is as follows:

"Whether the Sales Tax Appellate Tribunal committed an error of law in confirming the levy of penalty under Section 12(5)(iii) of the Tamil Nadu General Sales Tax Act, 1959 on the sales tax levied on Excise Duty, when in fact there was uncertainty in the legal position during the assessment year 1983-84 as to whether sales tax was at all leviable on the Excise Duty element in a situation where the incidence of excise duty was on the buyer of the IMFL and beer namely the Tamil Nadu State Marketing Corporation?

5. Since the facts in all these cases are common and the Order passed by the Sales Tax Appellate Tribunal is also common, it is suffice to refer to the facts as given in T.C.No.640 of 2006.

6. The assessee herein is a company engaged in the manufacture of Indian Made Foreign Liquor. For the assessment year 1982-83, originally, the Assessing Officer finalised the assessment holding that the assessee had a taxable turnover of Rs.3,41,42,842/-. While finalising the assessment, the Assessing Officer included the Excise Duty and Vend Fee on the manufactured Indian Made Foreign Liquor at the hands of the dealers. Subsequently, the assessment was sought to be revised to include the Vend Fee paid by the licensee TASMAC in terms of Rule 15(2) of the Tamil Nadu Indian Made Foreign Spirits (Supply of Wholesale) Rules, 1981. The assessee contended that unlike the Vend Fee imposed under Rule 22(3) of the Tamil Nadu Indian Made Foreign Spirits (Manufacture) Rules, 1981 Vend Fee imposed under Rule 15(2) of Tamil Nadu Indian Made Foreign Spirits (Supply of Wholesale) Rules, 1981 on the TASMAC was not exigible to tax, since the liability cleared by the whole sale dealer was independent of the sale and the Vend Fee and Excise Duty on manufacture levied under ?Rule 22 (3) of the Tamil Nadu Indian Made Foreign Spirits (Manufacture) Rules, 1981. Thus the liability under Rule 15(2) Tamil Nadu Indian Made Foreign Spirits (Supply of Wholesale) Rules, 1981 was independent of Rule 22(2) of the Tamil Nadu Indian Made Foreign Spirits (Manufacture) Rules, 1981. Rejecting the assessee's contention on the Vend Fee paid by the purchaser in terms of the wholesale vending rules, the assessment was completed by including the said amount too, at the hands of the assessee. The assessee objected to the