TaxTMI 
TaxTMI 
2004 (11) TMI 319
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....mitting back the same to the Joint Commissioner of Commercial Taxes (Admn.), Dhanbad Division, Dhanbad, for passing a fresh order in view of the observations and directions made in the judgment. The short facts are as follows: The erstwhile Government of Bihar came out with an Industrial Policy, 1995, providing certain incentives to the newly set up industrial units in the small-scale sector. Clause 16.1 and clause 16.2 of the said Industrial Policy provided for exemption from sales tax on purchase of raw material and exemption of sales tax on sale of finished products. The Commercial Taxes Department of the State Government issued statutory notifications for implementation of the said Industrial Policy vide S.O. No. 478/479 dated December 22, 1995. The said Industrial Policy was amended vide Notification No. 5680 dated August 27, 1997, for providing certain reliefs to the pipeline industries. The Industrial Policy, 1995, was amended with a view to provide extension of time-limit for the date of start of commercial production in case of pipeline industries where substantial investment capital has been made subject to the condition that such pipeline industrial unit shall seek....
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....on on the ground that the respondent did not obtain the prior permission from the Industries Department in accordance with the provisions laid down in the statutory Notifications No. S.O. 57 and S.O. 58 dated March 2, 2000. The respondent-unit, on April 2, 2001, applied for the eligibility certificate under the provisions of S.O. No. 478 and S.O. No. 479 dated December 22, 1995, read with S.O. No. 57 and S.O. No. 58 dated March 2, 2000, issued under the provisions of the Industrial Policy, 1995, on April 2, 2001, without obtaining the prior permission of the State Government in the Industries Department. The Joint Commissioner, by order dated September 11, 2000, rejected the application filed by the respondent for exemption from payment of sales tax on purchase of raw materials and exemption from payment of sales tax on sale of finished products under the provisions of the concerned notifications. The Joint Commissioner rejected the application on the ground that no prior permission from the Department of Industries has been issued. 4.. Aggrieved by the order passed by the Joint Commissioner, the respondent filed a writ petition before the High Court of Jharkhand which was op....
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....ions and directions made hereinabove within a period of two months from the date of receipt of a copy of this order." 8.. Learned Additional Solicitor-General appearing for the appellants submitted that the High Court erred in allowing the writ petition filed by respondent No. 1 and directing the grant of exemption in favour of the same overlooking the fact that respondent No. 1 had admittedly not complied with the statutory conditions prescribed under the notifications issued by the State Government in terms of the Industrial Policy, 1995, for such grant. According to him, the conditions prescribed by the authorities for grant of exemption are mandatory and that the High Court directed the grant of exemption in favour of the respondent overlooking the statutory provisions prescribed, more so, in the absence of any challenge to the validity of such conditions. It was further submitted that non-compliance of the provisions laid down in the statutory provisions would disentitle the respondent from grant of exemption. 9.. Mr. Gopichand Bharukha, learned Senior Counsel, appearing for respondent No. 1, submitted that the temporary registration certificate granted by the Industries....
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....t registration certificate to respondent No. 1 was issued on April 30, 2001, wherein it was stated that the respondent has started its production on April 2, 2001. Accordingly, after the commercial production had started, the respondent applied for exemption certificate on the requisite application form for granting sales tax exemption on purchasing raw materials and on sales of finished goods on April 2, 2001. Mr. Bharukha also submitted that on the respondent filing an application for exemption before the Deputy Commissioner of Commercial Taxes, the said Deputy Commissioner taking into consideration all the relevant document had recommended the case of the respondent to the Joint Commissioner of Commercial Taxes (Admn.) and the said order was also based on the inspection made in the respondent's premises and after checking of the documents by the Assistant Commissioner of Commercial Taxes and that from the perusal of the order passed by the Deputy Commissioner of Commercial Taxes, it is evident that he has considered the second proviso to S.O. No. 58 dated March 2, 2000, and stated that by way of prior permission, the General Manager, District Industries Centre, Dhanbad, has issu....
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....m levy of sales tax payable on purchase direct raw material required manufacturing of goods under the terms and conditions noted in the said policy. The "new industrial unit" is defined under clause 1(a) of the Act. Under S.O. No. 479 dated December 22, 1995, the Governor granted exemption to those new units/started function in between the period from September 1, 1995, to August 31, 2000, and obtained registration certificate from the competent authority under the afore- said Act. By S.O. No. 57 and 58 dated March 2, 2000, a notification was issued in exercise of the power conferred in sub-section (3)(b) of section 7 of the Bihar Finance Act, 1981 (Bihar Act No. 5 of 1981), incorporating certain amendments in the previous Notification S.O. No. 479 dated December 22, 1995, issued by the Department of Commercial Taxes. Under clause 1(a), new industrial unit has been defined to mean such a new unit where production has been started between September 1, 1995, and August 31, 2000, which has obtained a letter of permission/memo of acceptance letter/letter of authority/ registration certificate from the Department of Industries/Authority of Industrial Development Area/Director of Industr....
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....ment and afterwards permanently registered. This should be considered as permission letter prior to the registration certificate. Prior permission and registration in the Industries Department are two different aspects. Keeping this point in view the Department of Commercial Taxes at the time of according prior permission dated August 19, 2000, had also imposed a condition that proprietor of the unit shall also get prior permission from the Industries Department. But in this regard there is no document on record. Therefore, recommendation sent from the division is not approved." 18.. We have carefully considered the rival submissions made by the respective counsel appearing on either side. In our opinion, the certificate issued by the Industries Department cannot be consid- ered as prior permission within the meaning of the amended definition of new industrial unit. It will be manifest from the said notifications that in addition to the temporary registration, a separate prior permission of the Industries Department before August 31, 2000, is an important condition precedent for any unit to become eligible to be deemed as new industrial unit for the purpose of exemption. It is w....
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...., 1995, and the statutory notification issued by the Commercial Tax Department, the new industrial units was defined as those industrial units which went into production between September 1, 1995, and August 31, 2000, and which have been granted licence/ memorandum/letter of intent or registration certificate from the competent Industries Department or Industrial Area Development Authority or Directorate of Industry or Competent Authority of the Government of India. As already noticed, the statutory notifications were amended retrospectively vide S.O. Nos. 57 and 58 dated March 2, 2000. It will thus be seen from the aforesaid amended notifications that three conditions are stipulated for pipeline industries to be treated as new industrial units for the purposes of exemption under S.O. Nos. 478 and 479 which read as follows: "(i) Industrial unit should obtain registration certificate from the competent authority of the Industries Department. (ii) It should also have obtained prior permission from the State Government in the Industries Department before August 31, 2000. (iii) Industrial unit should commence production within five years from the date of obtaining prior....