2015 (1) TMI 379 - HC - VAT and Sales Tax

Court Directs Sales Tax Department to Align Entitlement Certificate with Eligibility Certificate Processes

The court held that the Commissioner of Sales Tax must amend the entitlement certificate to align with processes recognized in the amended eligibility ... Maintainability of writ petition - Alternate remedy available - Held that:- The non-exercise of jurisdiction by a writ court on the ground of alternative remedy is a self-imposed limitation and not an absolute bar in exercise of jurisdiction where the order challenged on the face of it is unreasonable and arbitrary besides being without jurisdiction - the writ court will not shy away from exercising its jurisdiction under article 226 of the Constitution of India – there was no merit in the plea of alternative remedy and the matter is to be examined on merits on exercise of jurisdiction under article 226 of the Constitution of India. Amendment in entitlement certificate - Benefit of deferral of sales tax - Whether the Commissioner of Sales Tax is bound/obliged to amend the entitlement certificate to include within it such processes which have been amended in the eligibility certificate as process of manufacture and therefore eligible to the benefit of deferral of sales tax – Held that:- No occasion arises to remand the matter to the authorities under the Sales Tax Act to determine whether the process carried out by the petitioner amounts to manufacturing activities - Firstly, the sales tax authorities while assessing the petitioner have passed assessment orders consistently from the year 2001-02 onwards holding that the petitioner is manufacturer of HR sheets as per customers requirement – the assessment orders passed by the AO over a period of four years under the Sales Tax Act has not been challenged in appeal/ revision by the Revenue - Therefore, there has been a determination that the petitioner's activity/process of slitting, pickling and cutting to length of HR/CR coils into sheets is a manufacturing activity – earlier also, it has been held that where an eligibility certificate is issued by the implementing agency, then it would be just and proper for the sales tax authority to issue an entitlement certificate – thus, the question whether or not the activity for which the entitlement certificate has been issued would amount to manufacture could be determined at the stage of assessment - there is no reason not to issue the entitlement certificate in line/accordance with the eligibility certificate. The eligibility certificate dated October 4, 2008 as amended by addenda dated January 20, 2009 and the entitlement certificate dated August 27, 2008 have been issued by the sales tax authorities under the MVAT Act – the contention of revenue cannot be accepted - in terms of section 89 of the MVAT Act, the Commissioner of Sales Tax is obliged to issue an entitlement certificate wherever an eligibility certificate has been issued by the implementing agency in an incentive scheme - the only condition provided under section 89 of the MVAT Act is that the same can be issued subject to such conditions as may be prescribed - the only condition prescribed is under rule 83 of the MVAT Rules - The rule provides that the entitlement certificate would be issued to a unit which has paid its tax, interest and penalty if any, payable under the Act and also has filed due returns for the period ending before the grant of entitlement certificate – thus, the petitioner is entitled to a grant of the entitlement certificate, no sooner it has received the eligibility certificate from the implementing agency under the 1993 Scheme. The petitioner is entitled to grant of an addenda to the entitlement certificate dated August 27, 2008 in line with/in accordance with the addenda dated January 20, 2009 issued to eligibility certificate dated October 4, 2008 – thus, the order dated February 26, 2010 of the Joint Commissioner of Sales Tax is set aside and the Joint Commissioner of Sales Tax (H.Q.) is directed to issue addenda to the entitlement certificate dated August 27, 2008 in line with the addenda dated January 20, 2009 issued to the eligibility certificate dated October 4, 2008 - We further reschedule the eligible period from September 1, 2008 to February 28, 2015 as noted in the entitlement certificate dated August 27, 2008 and in the eligibility certificate dated October 4, 2008 to a period of 39 months from the date the Sales Tax Commissioner issue a entitlement certificate or till the sales tax incentive of ₹ 18,96,00,000 is exhausted - This rescheduling of the period has become necessary in view of the respondents inaction in not issuing the addenda to entitlement certificate dated August 27, 2008 though the petitioner was clearly entitled to the same – Decided in favour of petitioner. Issues Involved:1. Whether the Commissioner of Sales Tax is bound to amend the entitlement certificate to include processes amended in the eligibility certificate as a manufacturing process eligible for sales tax deferral.2. Jurisdiction and authority of the Sales Tax Department in issuing entitlement certificates based on eligibility certificates.3. Interpretation and application of the Package Scheme of Incentive, 1993, and relevant statutory provisions.Issue-Wise Detailed Analysis:1. Amendment of Entitlement Certificate:The primary issue was whether the Commissioner of Sales Tax is obligated to amend the entitlement certificate to include processes such as slitting, pickling, and cutting to length, which were recognized as manufacturing processes in the amended eligibility certificate. The petitioner argued that once the eligibility certificate was amended to include these processes, the Sales Tax Department must issue a corresponding entitlement certificate. The court agreed, noting that the eligibility certificate issued by the implementing agency under the 1993 Scheme should be the basis for the entitlement certificate, as mandated by the Tribunal in Appeal No. 172 of 2000.2. Jurisdiction and Authority of Sales Tax Department:The petitioner contended that the Joint Commissioner of Sales Tax had no jurisdiction to independently assess whether the processes amounted to manufacturing, as this had already been determined by the eligibility certificate issued by SICOM. The court supported this view, stating that the sales tax authorities were bound by the eligibility certificate and should issue the entitlement certificate accordingly. The court emphasized that the issue of whether the processes constituted manufacturing could be examined at the assessment stage, not at the stage of issuing the entitlement certificate.3. Interpretation and Application of the 1993 Scheme and Statutory Provisions:The court examined the procedural rules and statutory provisions under the 1993 Scheme, the Bombay Sales Tax Act, and the Maharashtra Value Added Tax Act (MVAT Act). It was noted that under section 89 of the MVAT Act and Rule 83 of the MVAT Rules, the Commissioner of Sales Tax is required to issue an entitlement certificate when an eligibility certificate is issued, provided the unit has paid all taxes and filed due returns. The court found that these conditions were met by the petitioner. The court also referenced the Supreme Court's decision in Vadilal Chemicals Ltd., which held that once an eligibility certificate is granted, the Sales Tax Department cannot deny the benefits based on their independent assessment of manufacturing activities.Conclusion:The court quashed the order dated February 26, 2010, by the Joint Commissioner of Sales Tax and directed the issuance of an addenda to the entitlement certificate in line with the amended eligibility certificate. The eligible period was rescheduled to account for the delay caused by the Sales Tax Department's inaction. The petition was allowed, and the request for a stay of the order was rejected.