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2005 (7) TMI 353
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....ondent-Associated Cement Ltd. (in short, "ACC"). The common question so far as the appeals are concerned linking the respondents in the appeals relates to one issue, i.e., liability to pay purchase tax on the royalty paid by the respondents. As other issues are involved in Gujarat Ambuja's cases, the factual scenario in Civil Appeal Nos. 2641-2642 of 2000 needs to be noted in some detail. 2. Challenge in these appeals is to the judgments rendered by a division Bench of the Himachal Pradesh High Court. Writ petitions were filed by the present respondents questioning the action taken by the sales tax authorities and the revisional orders passed setting aside the orders of assessment framed for the assessment years 1995-96 and 1996-97 under the Central Sales Tax Act, 1956 (in short, "the Central Act") and the Himachal Pradesh General Sales Tax Act, 1968 (in short, "the Act"). 3. So far as the Gujarat Ambuja is concerned, the factual and legal background was highlighted in the writ petitions before the High Court as follows: It is a public limited company incorporated under the Companies Act, 1956, inter alia, carrying on the business of manufacture and sale of cemen....
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....east Rs. 50 crores and employed at least 200 persons on regular basis. The Empowered Committee considered the issue of grant of registration certificate as Prestigious unit in its meeting held on November 25, 1992 and decided to grant the same to Gujarat Ambuja treating it as a "Prestigious Unit". Consequently, the Director of Industries, Himachal Pradesh, issued on January 13, 1993 the required registration certificate registering the petitioner-unit as a "Prestigious Unit". As the production of the unit could not be commenced by January, 1995, which was one of the stipulated conditions, taking into account the substantial progress made by the company, the Industries Department by its letter dated January 28, 1995, approved the grant of further extension initially till June 30, 1995 and thereafter up to September 30, 1995 by their letters dated January 28, 1995 and June 30, 1995. On December 1, 1994, the Industries Department made further amendments to the notification dated March 27, 1991 and July 31, 1992, and brought into existence the concept of "Prestigious Cement Unit", according to which the unit must go into commercial production after May 1, 1992 and registered with the E....
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....ption from sales tax in terms of the notifications referred to supra. A formal certificate was also issued by the Department of Industries on January 24, 1996 specifying the commencement of the commercial production on September 26, 1995 confirming at the same time about the investment of about rupees 391 crores and employment of 353 persons on regular basis. Sales tax due was paid to the Department for the intervening period from August 11, 1995 to September 25, 1995. The Excise and Taxation Department issued an amendment on January 30, 1996 to the earlier notification dated December 31, 1994 and introduced para 1(c) which was published in the Official Gazette on February 6, 1996, where under the State Government had specifically given exemption to Gujarat Ambuja from payment of sales tax subject to the fulfilment of certain conditions enumerated in the notification being a company classified and placed in the category of industrial Block "B" in terms of which it was shown to be eligible to avail of the concession of exemption for 108 months (9 years). 7. Since the unit was already registered as a "Prestigious unit" on January 13, 1993 in accordance with the notification issued....
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....nt of the sales tax with effect from February 6, 1996, which is the date on which the notification was actually published instead of from January 30, 1996 with reference to which it was granted earlier. Once again, in respect of this order also, an appeal was filed before the Additional Excise and Taxation Commissioner/ Appellate Authority challenging the same on the ground that the exemption should have been granted from the date of commencement of the commercial production, namely, September 26, 1995 and not as is sought to be given by the authorities concerned. For the assessment year 1996-97, the assessing authority passed an order dated October 24, 1997, after considering all the relevant material on record granting exemption from the payment of sales tax. 9. While matter stood thus, according to the respondents on March 24, 1998 when two political parties formed a Coalition Government in the State of Himachal Pradesh, the Excise and Taxation Minister, who belonged to a political party and the leaders of that party started issuing number of statements against the respondent- company by prejudging the issue and questioning its entitlement for exemption under the Incentive Sc....
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....ith effect from February 6, 1996, the date of publication of the notification only and not from the date of commencement of commercial production, namely, September 26, 1995. In the light of the replies filed in response to the notices issued by the revisional authority, the respondent requested the assessing authority to adjourn the proceedings relating to the assessment year 1997-98, but on December 1, 1998, the Sales Tax Officer passed an order withdrawing the exemption earlier granted and directed the assessee to pay the sales tax to the tune of Rs. 18.50 crores under the Act as well as the Central Act. It is stated that since para 1(C) of the notification dated January 30, 1996 published on February 6, 1996 prohibited by virtue of clause 5 therein the assessee from charging tax on the sale of cement manufactured in the new unit and any collection of the sales tax would have exposed to penal consequences under section 35 of the Act, the assessee had not actually collected any sales tax at all and in spite of all these, it was being made to pay huge amount, which is an illegal demand on account of the arbitrary, illegal and mala fide nature of the action initiated by the authori....
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....ch was a condition precedent for grant of benefit. That was treated to be an additional ground for holding that the respondent was not entitled to any benefit. Reference was made to certain defective "C forms" to highlight as to how the assessee had failed to comply with the requirements for entitlement of the benefits. Accordingly, the revisional authority directed fastening of additional tax liability. Apprehending that the appellate authority, which is only subordinate to the revisional authority is likely to follow the view expressed by the revisional authority and the remedy of appeal would be merely an empty formality in view of the order of the revisional authority, the writ petitions were filed. The High Court allowed the writ petitions by the impugned judgment and quashed the orders of the sales tax authorities; inter alia, holding as follows: "So long as the petitioners satisfied the eligibility criteria prescribed in the Revised Incentive Rules, as amended from time to time, he would be entitled to the benefits and incentives extended under the Rules and the statutory notification is not a must or an essential pre-requisite for the petitioners to assert/enforce ....
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....should not have entertained the writ petition. 14. Further submission of appellant-State is that benefits were not available to respondent No. 1-Company as the requisite conditions were not fulfilled. Firstly, it was not a new industrial unit registered with the empowered committee appointed in accordance with rule 24 between May 1, 1992 and March 31, 1995 and had not gone into the commercial production on or after May 1, 1992. It was also submitted that various provisions of the Act and the Central Act were not complied with, as would be evident from the fact that the requisite declaration forms were not submitted and/or forms submitted were defective. That being so, the High Court was not justified in interfering with the revisional orders passed. There was no evidence before the revisional authority that respondent No. 1-company was registered with the empowered committee on January 13, 1993. This did not form a part of the revisional record and obviously was not considered by the revisional authority. That being so, the High Court should not have taken the same into account. It was also pointed out that merely because certain defective forms were filed that cannot be taken a....
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....he writ petitioners were in power and the subordinate authorities would have been in no position to give justice to the writ petitioners contrary to their dictates. The authorities recorded conclusions which clearly show the bias and preconceived notions. The conclusions were pre-determined. In that background, the writ petitions were filed and were entertained. The High Court has elaborately dealt with every relevant aspect and it has not been shown as to how the High Court's judgments suffer from any infirmity. Further, this Court should not interfere since the High Court had entertained writ petitions indicating reasons why the writ petitions were entertained when alternative remedy was available. 17. Stand of the respondents on the other issues was to the effect that the submissions of the appellants do not carry any weight and have been made overlooking the factual and legal position. The submissions completely overlook the essence of the notifications and are based on misreading them. 18. We shall first deal with the plea regarding alternative remedy as raised by the appellant-State. Except for a period when article 226 was amended by the Constitution (42nd A....
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....Kumar AIR 1965 SC 1321, Siliguri Municipality v. Amalendu Das AIR 1984 SC 653, S.T. Muthusami v. K. Natarajan AIR 1988 SC 616, Rajasthan State Road Transport Corporation v. Krishna Kant AIR 1995 SC 1715, Kerala State Electricity Board v. Kurien E. Kalathil AIR 2000 SC 2573, A. Venkatasubbiah Naidu v. S. Chellappan (2000) 7 SCC 695, L.L. Sudhakar Reddy v. State of A.P. (2001) 6 SCC 634, Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra (2001) 8 SCC 509, Pratap Singh v. State of Haryana (2002) 7 SCC 484 and GKN Driveshafts (India) Ltd. v. Income-tax Officer See 2003] 259 ITR 19. (2003) 1 SCC 72. 21. In Harbanslal Sahnia v. Indian Oil Corporation Ltd. (2003) 2 SCC 107, this Court held that the rule of exclusion of writ jurisdiction by availability of alternative remedy is a rule of discretion and not one of compulsion and the court must consider the pros and cons of the case and then may interfere if it comes to the conclusion that the petitioner seeks enforcement of any of the fundamental rights; where there is failure of principles of natural justice or where the orders or proceedings are wholly without jurisdiction or the....
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....ative remedy was not availed. There are two well recognised exceptions to the doctrine of exhaustion of statutory remedies. First is when the proceedings are taken before the forum under a provision of law which is ultra vires, it is open to a party aggrieved thereby to move the High Court for quashing the proceedings on the ground that they are incompetent without a party being obliged to wait until those proceedings run their full course. Secondly, the doctrine has no application when the impugned order has been made in violation of the principles of natural justice. We may add that where the proceedings itself are an abuse of process of law the High Court in an appropriate case can entertain a writ petition. 24. Where under a statute there is an allegation of infringement of fundamental rights or when on the undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess can be the grounds on which the writ petitions can be entertained. But normally, the High Court should not entertain writ petitions unless it is shown that there is something more in a case, something going to the root of the jurisdiction of the officer, something whic....
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....to plunge into those seas........" 27. Therefore, the plea that the High Court should not have entertained the writ petition is without any merit and deserves rejection. 28. Though learned counsel for the appellant-State urged that certificate showing that respondent No. 1-company was registered with the Empowered Committee on January 13, 1993 should not have been considered on the ground that revisional authority had not dealt with the same while dealing with the case of respondent- company, it is not disputed that the registration was within the knowledge of the appellants. In fact the certificate was a part of the record before the High Court. The registration with the Empowered Committee on January 13, 1993 therefore establishes that the respondent No. 1-company was registered with the Empowered Committee within the period prescribed in the incentive notification. The appellant-State issued a notification through the Department of Industries in the name of the Governor on March 27, 1991. The notification notified rules for grant of revised incentives to industrial units and the rules were to be operative from April 1, 1991 which was referred to as the appointed date. Unde....
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....ently, it was open to the Empowered Committee to register a unit prior to its going into the commercial production. This position is abundantly clear from the stipulation in the rule itself that the Empowered Committee in certain cases could extend the outer-limit of the period for going into commercial production, where 80 per cent of the project had been completed. As noted above, on January 13, 1993 the proposed unit of respondent No. 1-company for the manufacture of Portland cement was registered with the Empowered Committee subject to certain conditions. It was stipulated that the unit was to commence production latest by January, 1995. Changes were introduced by the notification dated December 1, 1994 vis-a-vis earlier Notification dated March 27, 1991 and July 31, 1992. By this notification, the concept of "prestigious cement unit" was introduced. A unit to be eligible as a "prestigious cement unit" was to fulfil the following conditions: (i) Must be a new industrial unit registered with the Empowered Committee appointed in accordance with rule 24 between May 1, 1992 and March 31, 1995. (ii) The new industrial unit must go into commercial production on or a....
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....xemption for a period of 9 years. It is to be noted that the respondent No. 1-company was registered as a dealer on August 11, 1995 under the Act and a certificate in form STE-III had been issued by the Director of Industries. When respondent No. 1 applied in form STE-I, exemption certificate in form STE-II had been granted by the prescribed authority. The denial of benefit contemplated under clause (3) of the notification related to a finding about evasion of tax either under the Act or the Central Act. 32. On January 28, 1995 the Director of Industries extended the date of commencement of commercial production till June 30, 1995 keeping in view the progress of the plant. The same was further extended up to September 30, 1995 keeping in view the progress of the plant by order dated June 30, 1995. By Notification dated July 6, 1995 incentives of sales tax deferment/exemption were restored to cement units. There is no dispute that the respondent- company's commercial production started with effect from September 26, 1995 and, in fact, the Director of Industries by his certificate dated January 24, 1996 confirmed this position. On September 26, 1995 respondent-company brought ....
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....not be said to have lost its currency after the promulgation of December 1, 1994 Notification. There is no dispute that respondent No. 1-company was registered as a new industrial unit within the stipulated dates. If the contention of the State is accepted, it would mean that the extension given by the Secretary of Industries who was the Member Secretary of the Empowered Committee extending the date of commercial production after considering the progress of the units was in derogation of the prescriptions. That is not the case of the appellant-State. Further, it overlooks the powers available under rule 24.4 of the notification dated July 31, 1992. 35. Another significant aspect which needs to be noted at this juncture is that in the Notification dated January 13, 1993 respondent No. 1-company was clearly and specifically named as one of the units to which the exemption from payment of sales tax for a period of 9 years was available. That being so, there is no question of the appellant-State subsequently raising a question that the respondent No. 1-company was not registered between the specified dates. A plea was taken that if that was the position there was no necessity for th....
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....P.O. Darlaghat, Tehsil Arki, District Solan (H.P.). "B" One hundred eight months (9 years) 2. M/s. The Associated Cement Companies Ltd. P.O. Barmana, District Bilaspur (H.P.). "B" One hundred eight months (9 years) (2) The concession of exemption from payment of tax under this Act, shall be admissible to "other industries" only if - (i) it is a prestigious cement industrial unit; (ii) it has been registered as a dealer under the Himachal Pradesh General Sales Tax Act, 1968, for manufacture of cement for sale in the "new cement industrial unit"; (iii) it has obtained a certificate in form S.T.E.-III from the Director of Industries, Himachal Pradesh and has furnished the same to the prescribed authority for the grant of exemption certificate in form S.T.E.-III; (iv) it has been granted an exemption certificate in form S.T.E.-II by the prescribed authority; (v) it (registered dealer) complies with the provisions of: (a) the Himachal Pradesh General Sales Tax Act, 1968, (b) the Central Sales Tax Act, 1956 and (c) the Rules, notifications and orders made and issued under these Acts; (vi) the exemption certi....
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....o (i) mode of availing of benefit of exemption and issue of exemption certificate, (ii) renewal of exemption certificate, (iii) cancellation of exemption certificate in form STE-II, (iv) filing of returns, assessment, etc., (v) registers to be maintained, (vi) condonation of delay, (vii) other powers of the prescribed authority, and (viii) overriding effect of this notification. (5) The exemption is subject to the further condition that the entrepreneur (registered dealer) shall not charge sales tax on the sale of cement manufactured in the new cement industrial unit during the period of exemption. Explanation.- For the purpose of para (1-C) of this notification,- (a) "other industries" means "prestigious cement industrial units"; (b) "prestigious cement industrial unit" means a new cement industrial unit which has fixed capital investment of not less than rupees fifty crores, comes into production after the 1st day of May, 1992, is registered by the Empowered Committee between the 1st day of May, 1992 and the 31st day of March, 1995 and employs on permanent b....
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....o. 1-company wanted the exemption from an anterior date. In any event, the fixation of the date of entitlement wtth effect from February 6, 1996 became final by the first appellate orders. The revisional authority did not take note of the said appellate orders. In that view of the matter, the assessment orders which had got merged with the first appellate orders could not have been revised. Significantly, by the revisional orders the revisional authority set aside only the assessment orders, though according to the show cause notices the respondent No. 1 was required to show cause as to why the exemption notification shall not be recalled. In the operative part of the order, only the assessment orders have been quashed. The final certificate was issued to the respondent No. 1-company on June 1, 1996 but was made effective from August 11, 1995. Undisputedly, the provisional registration certificate under the Act was originally valid up to February 14, 1994 and was re-validated up to June 30, 1995. On June 17, 1995 an application was made for its renewal up to December 31, 1995 and the requisite fee had been deposited and the renewal was granted. Though much stress was laid on the ab....
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....t statutes does not arise. It was noted by this Court in Sahney Steel and Press Works Ltd. v. Commercial Tax Officer See [1985] 60 STC 301. (1985) 4 SCC 173 that even in a given case, an assessee can be given an opportunity to collect declaration forms and furnish them to the assessing authority if the challenge of the assessee to taxability of a particular transaction is turned down. 41. Respondent No. 1-company's stand was that it was granted exemption from payment of sales tax and, therefore, there was no requirement of furnishing any "C form" for certain periods relating to which there was a doubt about availability of the concession, the declaration forms were filed. Therefore, the assessing officer shall grant opportunity to the respondent No. 1-company to cure the defects, if any in the declaration forms. 42. It was urged by learned counsel for the appellant-State that revision notices Nos. 7 to 10 were erroneously quashed by the High Court. Learned counsel for the respondents submitted that in the writ petition filed by it there was no prayer for quashing revision notices Nos. 7 to 10. It is stated that the High Court had not clearly quashed the said revision noti....
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....t's Dictionary of English Law, Fifth Edition, Vol. 2, page 1595, as follows: Royalty, a payment reserved by the grantor of a patent, lease of a mine or similar right, and payable proportionately to the use made of the right by the grantee. It is usually a payment of money, but may be a payment in kind, that is, of part of the produce of the exercise of the right. Royalty also means a payment which is made to an author or composer by a publisher in respect of each copy of his work which is sold, or to an inventor in respect of each article sold under the patent. We are not concerned with the second meaning of the word 'royalty' given in Jowitt. Unlike the Timber contracts, the bamboo contract is not an agreement to sell bamboos standing in the contract areas with an accessory licence to enter upon such areas for the purpose of felling and removing the bamboos nor is it, unlike the timber contracts, in respect of a particular felling season only. It is an agreement for a long period extending to fourteen years, thirteen years and eleven years with respect to different contract areas with an option to the respondent-company to renew the contract ....
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....cide. xxx xxx xxx 120. It is true that the nomenclature and description given to a contract is not determinative of the real nature of the document or of the transaction thereunder. These, however, have to be determined from all the terms and clauses of the document and all the rights and results flowing therefrom and not by picking and choosing certain clauses and the ultimate effect or result as the court did in the Orient Paper Mills' case See [1977] 40 STC 603 (SC); [1977] 2 SCR 140. xxx xxx xxx 127. Conclusions. To summarize our conclusions: xxx xxx xxx (9) The dictionary meaning of a word cannot be looked at where that word has been statutorily defined or judicially interpreted but where there is no such definition or interpretation, the court may take the aid of dictionaries to ascertain the meaning of a word in common parlance, bearing in mind that a word is used in different senses according to its context and a dictionary gives all the meanings of a word, and the court has, therefore, to select the particular meaning which is relevant to the context in which it has to interpret that word. ............
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....SCC 166]. 49. "Royalty" is not a tax. Simply because the royalty is levied by reference to the quantity of the minerals produced and the impugned cess too is quantified by taking into consideration the same quantity of the mineral produced, the latter does not become royalty. The former is the rent of the land on which the mine is situated or the price of the privilege of winning the minerals from the land parted by the Government in favour of the mining lessee. The cess is a levy on mineral rights with impact on the land and quantified by reference to the quantum of mineral produced. The distinction, though fine, yet exists and is perceptible. [See State of West Bengal v. Kesoram Industries Ltd. See [2004] 2 RC 298. (2004) 1 JT SC 375. 50. Though section 9 refers to "mineral removed" it does not mean that the royalty is paid on removal. It is point of payability. Royalty in the context of the agreement is an alternate to dead rent. Section 9 speaks of rates of royalty. It is nothing but measure of levy. The charging of dead rent and royalty is under different situations. It is shifting of the measure. Both "dead rent" and "royalty" are returns to the lessor. The stand of app....
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.... "Royalty, payment to a patentee by agreement on every article made according to his patent: or to an author by a publisher on every copy of his book sold; or to the owner of minerals for the right of working the same on every ton or other weight raised." 58.. The definition of "royalty" given in Black's Law Dictionary, 5th Edition, at page 1195, is as follows: "Royalty. Compensation for the use of property, usually copy- righted material or natural resources, expressed as a percentage of receipts from using the property or as an account per unit produced. A payment which is made to an author or composer by an assignee, licensee or copyright holder in respect of each copy of his work which is sold, or to an inventor in respect of each article sold under the patent. Royalty is share of product or profit reserved by owner for permitting another to use the property. In its broadest aspect, it is share of profit reserved by owner for permitting another the use of property.... In mining and oil operations, a share of the product or profit paid to the owner of the property............." 59. In H.R.S. Murthy v. Collector of Chittoor AIR 1965 SC 177, th....
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.... "lessee", "premium" and "rent" and is as follows: "105. Lease defined-A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. Lessor, lessee, premium and rent defined-The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent." 64. The decision of this Court in D.K. Trivedi & Sons v. State of Gujarat (1986) Supp SCC 20 is a complete answer to the plea raised by learned counsel for the appellant-State. It was, inter alia, held in that case as follows: (The relevant paras are quoted). "39. In a mining lease the consideration usually moving from the lessee to the lessor is the rent for the area leased (often called surface rent), dead rent and royalty. Since the mining lease confers upon the lessee the....
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....at 'usually the royalties are made to merge in the fixed rent by means of a provision that the lessee, without any additional payment, may work, in each period for which a payment of fixed rent is made, so much of the minerals as would, at the royalties reserved, produce a sum equal to the fixed rent'. The same purpose is achieved by the proviso to section 9-A(1) and in the Mineral Concession Rules, 1960, by the proviso to clause (c) of rule 27 under which the lessee is liable to pay the dead rent or royalty in respect of each mineral, whichever be higher in amount, but not both. In all State rules which provide for payment of both dead rent and royalty, there is a provision that only dead rent or royalty, whichever is higher in amount, is to be paid, but not both. Rules made under the 1948 Act, as for example, rule 41 of the Mineral Concession Rules, 1949, and rule 18 of the Bombay Mineral Extraction Rules, 1955, also contained a similar provision. Thus, the practice followed throughout in exercising the power to make rules regulating the grant of mining leases has been to provide that either dead rent or royalty, whichever is higher in amount, should be paid by the lessee....
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....he sense that they are incident to the reversion, but periodical payments under a lease of mines for a specific period may amount to personal debts only. A lessee who goes into possession and works minerals before completion of the lease may be ordered on interim application to pay into Court the amount of royalties due in respect of minerals raised. Para 324: Usual provisions in leases: The statutory formalities regarding the disposition of an interest in land will apply to a con- tract for a mining lease. In a contract for a lease for working a mine, time is of the essence of the contract even if not expressly stated to be so. Mining leases usually contain clauses providing for the reference of dispute to arbitration or determination by an expert where the value of the mineral gotten is in dispute." Relevant clauses in the Lease Deed dated May 28, 1992 also need to be quoted. They read as follows: "xxx xxx xxxx Part V: RENT AND ROYALTIES RESERVED BY THE LEASE 1. To pay dead rent or lease whichever is higher. The lessee shall pay, for every year except the first year of the lease, dead rent as specified in clause (2) of this....