Tax set-off exclusion applies only when concessional raw material purchases are actually availed, not merely available by registration.

A dealer registered under section 13(1)(b) of the Bihar Finance Act, 1981 was held not to lose the set-off facility under S.O. No. 123 dated 5 March 1990 merely because concessional purchase of raw materials was available; the disqualifying condition applied only if that concession was actually availed. On the facts, the dealer had not purchased raw materials at the concessional rate after April 1991 and had surrendered unused forms, so the statutory exclusion was not triggered. Rejection of Form XXVIII-B under rule 45 of the Bihar Sales Tax Rules, 1983, based on alleged disentitlement and default in tax deposit, was therefore invalid and the impugned order was quashed for reconsideration according to law.

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Issues: (i) Whether a dealer registered under section 13(1)(b) of the Bihar Finance Act, 1981, but not actually availing the concessional purchase of raw materials, was disentitled to the set-off facility under S.O. No. 123 dated 5 March 1990. (ii) Whether the rejection of Form XXVIII-B under rule 45 of the Bihar Sales Tax Rules, 1983, on the basis of such alleged disentitlement and default in deposit of tax was valid.

Issue (i): Whether a dealer registered under section 13(1)(b) of the Bihar Finance Act, 1981, but not actually availing the concessional purchase of raw materials, was disentitled to the set-off facility under S.O. No. 123 dated 5 March 1990.

Analysis: The notification excluded only industrial units availing the special rate of tax on purchase of raw materials under section 13. Mere registration or availability of the concessional facility was not enough; the facility had to be actually availed of. The record showed that the dealer had surrendered unused forms and had not purchased raw materials at concessional rate after April 1991. On that basis, the condition in the notification was not breached.

Conclusion: The dealer was not disentitled to the set-off facility under S.O. No. 123 dated 5 March 1990.

Issue (ii): Whether the rejection of Form XXVIII-B under rule 45 of the Bihar Sales Tax Rules, 1983, on the basis of such alleged disentitlement and default in deposit of tax was valid.

Analysis: The impugned order proceeded on inconsistent premises and treated mere entitlement to concessional purchase as equivalent to actual availing of that benefit. Since the dealer was not shown to have availed the concessional facility, the foundation for withholding the form under rule 45(b) failed. The rejection was therefore based on an erroneous construction of the notification and could not stand.

Conclusion: The rejection of Form XXVIII-B was invalid.

Final Conclusion: The impugned order was quashed, the matter was directed to be reconsidered afresh according to law, and the dealer was granted interim supply of the requisite form until fresh disposal.

Ratio Decidendi: A statutory exclusion from a tax set-off benefit applies only when the disqualifying concession is actually availed, not when it is merely available by registration.

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