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1999 (8) TMI 931
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....s well as Himachal Pradesh general sales tax under the exemption notification dated January 30, 1996 for a period of nine years from the date of its commercial production, namely, September 26, 1995; (c) Issue an appropriate writ, order or direction restraining the respondents from realizing the sales tax and purchase tax from September, 1995 till date both under the Central Sales Tax Act, 1956 and Himachal Pradesh General Sales Tax Act, 1968. 3.. The case of the petitioners is that it is a public limited company incorporated under the Indian Companies Act, 1956 and it is carrying on the business of manufacture and sale of cement under the name and style of "Ambuja Cement" in the State of Himachal Pradesh and that it is amongst one of the best managed cement companies in India and it is also claimed that it had been conferred various prestigious awards for its performance, pollution control and management including the award in the year 1991 by the Prime Minister of India, namely, "National Award for Public Recognition of Outstanding Activity for prevention of control of pollution". 4.. The petitioners' claim to have submitted an application in the year 1989 for set....
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....". Consequently, the Director of Industries, Himachal Pradesh, issued on January 13, 1993 the required registration certificate registering the petitioner-unit as a "prestigious unit" vide annexure VI. Inasmuch 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 petitioner-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, respectively, filed as annexure VII. On December 1, 1994, the Industries Department made further amendments to the notifications 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 empowered committee under rule 24 between May 1, 1992 and March 31, 1995. By the said amendment, it was also notified that such unit should have a fixed capital of Rs. 50 crores and employed at least 200 persons on regular b....
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....s shown to be eligible to avail of the concession of exemption for 108 months (9 years). 8.. The petitioner also claims that since the petitioner-unit was already registered as a "prestigious unit" on January 13, 1993 in accordance with the notification issued by the State Government on July 31, 1992 by the empowered committee in its meeting held on November 25, 1992 and inasmuch as the requirements of the "prestigious unit" and the "prestigious cement unit" were absolutely one and the same, the petitioner unit was mentioned and referred to in the notification dated January 30, 1996 and that a formal declaration was also made by the Industries Department on February 2, 1996 declaring the petitioner to be a "Prestigious cement industrial unit" keeping in view the satisfaction of all the requisite eligibility criteria by the petitioner-company vide annexure XIV. It is reiterated for the petitioner that their unit fulfilled all the conditions as required under rule 2(rrr), as mentioned in the notification dated July 6, 1995 as well as January 30, 1996 issued by the Industries Department as also the Excise and Taxation Department of the State Government having regard to the f....
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.... sought to be given by the authorities concerned. For the assessment year 1996-97, the assessing authority appears to have passed an order dated October 24, 1997 filed as annexure XIX after considering all the relevant material on record granting exemption from the payment of sales tax. 10.. While matter stood thus, it is stated for the petitioner that on March 24, 1998 when the BJP-HVC formed a coalition Government in the State of Himachal Pradesh, the Excise and Taxation Minister, who belongs to the political party HVC and the leaders of the said party started issuing number of statements against the petitioner-company by prejudging the issue and questioning the entitlement of the petitioner for exemption under the incentive scheme announced. These statements in the shape of press cuttings have been filed as annexure XX. The petitioner would contend that on account of such extraneous reasons and influence and with ulterior motives, action was initiated by the Commissioner of Sales Tax without any justification in law and in an arbitrary manner proposing to revise the orders passed by the assessing officer, in exercise of the powers conferred under section 31(1) of the Himachal....
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....appears to have requested the assessing authority to adjourn the proceedings relating to the assessment year 1997-98, but on December 1, 1998, the Sales Tax Officer appears to have passed an order withdrawing the exemption earlier granted to the petitioner and directed the petitioner to pay the sales tax to the tune of Rs. 18.50 crores under the State 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 petitioner from charging tax on the sale of cement manufactured in the new unit and any collection of the sales tax would have exposed the petitioner to penal consequences under section 35 of the State Act, the petitioner-company had not actually collected any sales tax at all and inspite of all these, the petitioner is being made to pay huge amount, which according to the petitioner is an illegal demand on account of the arbitrary, illegal and mala fide nature of the action said to have been initiated by the respondents against the petitioner. Against the order of the Sales Tax Officer dated December 1, 1998, the petitioner appears to have filed an appea....
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....ch is only subordinate to the revisional authority is likely to follow the terms of the order passed 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 petitioners have come up before this Court seeking for the reliefs noticed supra. C.W.P. No. 52 of 1999: 11.. The petitioner in this writ petition has prayed for the following reliefs: (a) Issue an appropriate writ, order or direction quashing and/or setting aside the impugned assessment order dated December 1, 1998, issued by the assessing authority and the order dated January 8, 1999 passed by the Additional Excise and Taxation Commissioner-cum-Appellate Authority (SZ) to the petitioner for the assessment year 1997-98; (b) Issue an appropriate writ, order or direction quashing and/or setting aside the orders of the revisional authority dated February 8, 1999 for the assessment years 1995-96 and 1996-97; (c) Issue an appropriate writ, order or direction declaring that the petitioner-company is entitled to full exemption from payment of Central sales tax as well as Himachal Pradesh general sales tax under the exemption notificat....
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....rial unit as a "prestigious cement industrial unit" itself, it must be shown to have satisfied the existence of essentials, which alone entitle such a unit to be registered as a "prestigious cement industrial unit" and not otherwise, and the same has to be meticulously insisted upon in order to prevent abuse of the concession. According to these respondents, the category of "prestigious unit" introduced from July 31, 1992 and "prestigious cement unit" introduced from December 1, 1994 are two distinct and separate categories with their origin and incentives and the amendment introduced by the notification dated December 1, 1994, which displaced the erstwhile concept of "prestigious unit", does not save the action taken under the earlier notification dated July 31, 1992 and, consequently, the notification dated December 1, 1994 substantially alter and virtually supersede the instructions contained in notification dated July 31, 1992 relating to "prestigious units" and, therefore, compliance with the provisions of rule 22.2.1 as also the provisions of the Himachal Pradesh General Sales Tax Act, 1968 and Central Sales Tax Act, 1956 became inevitable and compulsory. Further, according t....
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.... facts on record, but baseless and unfounded. The petitioners, according to these respondents, were obliged not only to strictly comply with the requirements of law but they must establish that they have strictly complied with all the requirements of law to entitle them to claim for the exemption from sales tax under the local as well as Central Sales Tax Acts and the notifications issued thereunder, they being statutory notifications occupying the field to the exclusion of any executive provisions and instructions to the contrary. Adverting to para 2 of the Incentive Rules and para 1-C(2) of the exemption notification, it is contended that the petitioners committed gross violation of the provisions of law on account of claiming for the year 1995-96 concessional rate of Central sales tax without producing the certificate in form RM-II and transferring the cement on consignment basis for more than 10 crores during 1996-97. By way of illustration of further violation on the part of the petitioners, it is also contended that the petitioners contravened the terms of provisional registration certificate issued under the respective Acts incurring liability for levy of penalty in respect ....
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....tion found notified in the notification dated January 30, 1996. The exemption certificate in form STE-II is said to be mere nullity in the eye of law inasmuch as the petitioners' industry itself was registered by the empowered committee by the registration certificate dated February 2, 1996. While strongly disputing and denying the allegations of ulterior and extraneous consideration being responsible for passing of the impugned orders, it is contended that the impugned orders have been passed strictly in accordance with law and in public interest and overall interest of Government revenue. According to these respondents, since prior to September 26, 1995 there was no "industrial unit" in existence and, therefore, even within the meaning of "prestigious unit" as defined in clause (2)(rrr) of the notification dated July 31, 1992, the eligibility claim of the petitioners' unit could not have been considered prior to September 26, 1995. Adverting to the terms of the certificate dated January 13, 1993, it is contended that in substance what was accorded registration certificate was of the proposed unit of the petitioners and the same cannot be construed to mean the registration of a "p....
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....further contended that the prescribed authority was not entitled to grant exemption certificate in form STE-II contrary to the registration certificate dated February 2, 1996 and, therefore, the vital mistakes committed on essential facts disentitle the petitioners to any benefit as claimed by them. Adverting to the change in the Government and the ulterior motives attributed to the authorities in respect of the action taken against the petitioners, it is contended that the order dated May 27, 1997 passed by the assessing authority for the year 1995-96, was said to have been sent to the revisional authority on May 29, 1997 and the same was said to have been scrutinised by the office for ascertaining its correctness on facts and law both under the State as well as Central Acts and that the record was examined and before issuing the revisional notices, a notice dated April 25, 1998 was said to have been issued under section 34 of the State Act to the petitioner for production of the listed documents and tender statements on oath, though on April 29, 1998 after hearing the petitioners' notices came to be issued pointing out the illegalities and improprieties. The principle of audi ....
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....of 1995, it is contended that there had been no violation of the orders of this Court granting stay, particularly, in view of the fact that there had been no determination of the purchase tax under section 5-A and the revisional authority had remitted the proceeding to the assessing authority before whom it is said to be pending still. These respondents also reiterate that every registered dealer is obliged to furnish "C" forms relating to the transactions and non-submission of "C" forms strikes at the root of the concession of exemption in view of the stipulation contained in para 1-C(2)(v) of the notification dated January 30, 1996. 17.. Respondents Nos. 4, 5 and 7 have also filed a separate reply contending that the Incentive Rules do not confer any rights enforceable in any court of law, that the registration certificate dated February 2, 1996 itself belies the claim of sales tax exemption of the petitioners. These respondents admit the claim of the petitioners that their unit commenced commercial production on September 26, 1995 and made an investment of Rs. 391 crores and provided employment to 353 persons at the time of coming into commercial production, at the same time ....
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....nt and spirit of the said section. It is also contended that the concept of registration of a "project" is not foreign to the Himachal Pradesh General Sales Tax Act in view of the provisions contained in section 10 of the Act, which recognised the said concept and provided for registration of the "unit" even where there is an intention to establish a business-manufacturing or industrial unit. According to the petitioners, the intention to establish is apparent firstly by IPARA registration, thereafter by getting the unit registered both under the Himachal Pradesh General Sales Tax Act and Central Sales Tax Act on February 14, 1992 and taking further steps in this regard, and that the petitioners became registered dealer under both the Acts from February 14, 1992 and complied with the requirements of the notifications. Reliance is also placed on clause (xix) of the notification dated September 25, 1992, which defines "unit" as an "industrial unit", which is registered as a dealer under the Act and by virtue of registration of the petitioners as a dealer under the Act on February 14, 1992, automatically it became an "industrial unit". Strong reliance is also placed for the petitioner....
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....n dated January 30, 1996 relates to the period between May 1, 1992 and November 30, 1994 when no concept of "prestigious cement unit" really existed. According to the petitioners, in the teeth of the certificates by the empowered committee, the petitioners were eligible for incentives and exemptions on the basis of their application dated September 26, 1995 and the factum of registration with the empowered committee on January 13, 1993, which was never disputed by any of the members of the empowered committee, the respondents are not entitled to, at this stage, approbate and reprobate by going behind the various decisions of the empowered committee. The petitioners also pointed out that the stand now taken in the reply filed by the respondents is contrary to the very action taken by the respondents themselves as would be apparent from the minutes of the first and sixth meeting of the empowered committee held on November 25, 1992 and January 23, 1996. It is also contended that the certificate dated February 2, 1996 is only a formal declaration of the decision already taken by the empowered committee on January 23, 1996 and as a matter of fact respondents Nos. 2, 3 and 4 being member....
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.... by Dr. L.M. Singhvi, Senior Advocate, Dr. A.M. Singhvi, Senior Advocate and Mr. Bharatji Aggarwal, Senior Advocate, whereas Shri Rajiv Nayyar, learned Senior Advocate defended the action and impugned orders passed by the respondents. 21.. Shri Shanti Bhushan, learned Senior Counsel contended that the respondents have not properly appreciated the principles, purport, purpose and object underlying the scheme devised to grant various incentives to attract entrepreneurs to locate industries in the backward areas to augment industrialisation not only to improve the economy of the State but also provide more employment opportunities in the State and the venture undertaken by the respondents as also the stand taken in these proceedings are ill-founded and fallacious. The scheme according to the learned Senior Counsel envisages three stages, viz. (a) registration as prestigious unit, (b) grant of the status as such on fulfilling the eligibility criteria and (c) the accord/availing of the entitlement of exemption and other incentives and that the petitioner-unit satisfied all these criteria meticulously and only on being convinced of the fulfilment of the criteria the various authoritie....
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.... still in force and binding on the authorities. As for the alleged violation of the provisions of the Central Sales Tax Act in not filing or filing defective and incomplete C forms, it is contended for the petitioners that in a case where there is total exemption, the necessity for filing C forms did not arise and that in any event, if at all the alleged lapse may result in denying the assessee only the concessional rate of taxation for the items of sales concerned and the same cannot be dubbed as any violation or contravention of the provisions of the sales tax law concerned to disentitle the petitioners for the exemption granted under the notification. It has been urged finally that something unusual which does not meet the eye has happened in this case to victimise the petitioners and that the respondents seem to have proceeded in the matter with a prejudged mind and predetermination to disentitle the petitioners of the benefits of the exemption-to which they are legitimately entitled, particularly when the respondents could not even this date either allege or substantiate that the petitioners do not satisfy the criteria relating to the capital investment or the employment on pe....
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....visional authority rightly held the petitioners to be not entitled to avail of the exemption and incentives and consequently the orders demanding the payment of tax with interest and penalty are quite in order and unassailable. In this connection, it has also been argued for the respondents that the registration certificate dated January 13, 1993 outlived its utility and purpose after the notification dated December 1, 1994, which excluded cement units from the definition of prestigious units and in the absence of any registration obtained as prestigious cement unit by making due application under the amended rules, before March 31, 1995 the petitioners cannot claim legitimately to satisfy the eligibility norms to avail of the incentives in question. It is also contended for the petitioners that the competent authorities must have enquired into the matter and specifically found out about the satisfaction of the criteria relating to investment and employment of labour before the issue of the certificate and inasmuch as no such enquiry and satisfaction seems to have been made or recorded in the case on hand, the revisional authority was well within its powers in revoking/ cancelling ....
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....entral, in the matter of non-payment of purchase tax and the non-production of proper and valid C forms, the learned Senior Counsel for the respondents reiterated the correctness of the stand taken by the revisional authority and the respondents, which according to the learned Senior Counsel are fully supported by the ratio of the decisions relied upon by the revisional authority, by inviting our attention also to those decisions. The petitioners also were said to have committed a serious lapse in not exercising its option to avail of either of the deferment or exemption incentive within 90 days, i.e., before November 10, 1995, the date of commencement of production being August 11, 1995 and that, therefore, the option said to have been exercised on December 19, 1995 is stated to be not in conformity with the requirements of the notification dated July 6, 1995. The date of commencement of production and not the date of commence-ment of commercial production is said to be relevant for calculating the period of 90 days for exercising the option. For the respondents, it was also submitted that the files have been submitted as early as on May 29, 1997 for the consideration of the Commi....
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....e Government, they do not create any claim against Himachal Pradesh, Government enforceable in any court of law. Rule 2-1(q) defined "new industrial unit" to mean an industrial unit located within the Himachal Pradesh which commences production on or after April 1, 1991 (the appointed day) and include also existing unit, which is eligible to get fresh registration as per the guidelines provided by the Development Commissioner, Small-Scale Industries, Government of India, from time to time but shall not include any industrial unit, small or medium or large, when it is formed only as a result of re-establishment, mere change of ownership, changes in the constitution, re-constitution of revival of an existing unit. Among several incentives, power concessions and sales tax incentives, are a few to be noticed. So far as sales tax incentives with which we are concerned, rule 11.1, provided for sales tax deferment scheme, stipulating that except for industries notified in annexure II to the Rules or as notified from time to time by the State Government a new industrial unit, which is "registered as a dealer under the Himachal Pradesh General Sales Tax Act, 1968/Central Sales Tax Act, 1956....
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.... empowered committee, as defined in the Rules, deserves to be considered as prestigious unit, (b) that the unit shall employ at least 200 workers on permanent basis and the unit shall follow the provisions for recruitment laid down under the employment policy of the State Government and comply with rule 24.3, and (c) any unit coming into commercial production in the State on or after May 1, 1992 and registered with the empowered committee as per the prescribed procedure laid down in rule 22.3, between May 1, 1992 and March 31, 1993 and meeting the eligibility criteria laid down under the said rule will be given prestigious status under the scheme. It has been made clear that existing units in the State having investment of more than 50 crores of rupees will not be counted for grant of prestigious status under the scheme and in respect of such unit if they go for expansion/diversification and if such expansion/diversification itself meets the eligibility criteria of prestigious unit as laid down, such unit will also be considered for availing of the incentives only for the expanded capacity. Prestigious units, which are registered as a dealer under the Himachal Pradesh General Sales....
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....tigious unit will also issue a certificate certifying the numbers of people employed and that such people have been recruited from the bona fide residents of Himachal Pradesh. Provided that while issuing such certificate, if it is found that a particular category of skilled/unskilled persons is not available from employment exchanges/Central employment cell at a particular point of time, a no objection certificate for recruitment for a specific period of time shall be issued by Director of Industries, in consultation with the Labour Commissioner, Himachal Pradesh. 24.4. The applications in the prescribed forms for setting up of prestigious unit/pioneer units will be made to the Director of Industries, who will then put these up for the consideration of the Industrial Project Approval and Review Authority. After Industrial Project Approval and Review Authority clearance the same application will be considered by the empowered committee. The decision of the empowered committee will be final. The empowered committee, while according approval for registration, will specify the date by which the unit shall commence commercial production. This will be done on the basis of the propo....
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....incentives to prestigious cement unit, by substituting rule 27(1) with a new rule, which reads as follows: "27.1. Sales tax incentives.-Sales tax exemption/deferment (both CST and GST) shall be available for a period of 12, 9 and 7 years in categories A, B and C blocks, respectively, to new prestigious cement units, excluding existing cement units which have gone/are going in for expansion and where the expansion itself meets the criterion laid down for prestigious cement units. In case of expansion, of existing cement units eligible for grant of prestigious status of the incentive of sales tax on the expanded capacity as provided above, i.e., exemption/deferment of CST-GST for a period of 12, 9 and 7 years in categories A, B and C blocks, respectively, will be available only if the level and amount of sales tax per annum being paid/paid on the date of commencement of production of the expanded unit by the old unit is maintained and paid every year during the period of eligibility of incentive on expanded capacity. Now prestigious cement units shall have to opt for either sales tax exemption or deferment within 90 days from the date of commencement of production. Option once ....
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....al 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 certificate continues to remain operative and it has not been withdrawn or cancelled by the prescribed authority or is not annulled or quashed in any appellate, revisional or other proceedings: Provided that the exemption contained in sub-para (1) to M/s. The Associated Cement Companies Limited, Barmana, District Bilaspur (Himachal Pradesh) shall be granted by the prescribed authority only if, in addition to the preceding conditions,- (a) the payment of tax under the Himachal Pradesh General Sales Tax Act, 1968....
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....ndustrial 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 basis not more than two hundred persons; and (i) is based on local raw material, or (ii) carries out value addition of fifty percentum or more, in its manufactured products, or (iii) undertakes an export commitment of 50 per cent or more of its production, or (iv) is declared to be prestigious cement unit by the empowered committee headed by the Secretary (Industries) to the Government of Himachal Pradesh; and also includes an existing industrial unit which fulfils the above criteria for 'prestigious cement unit' exclusively by virtue of the component of "expansion" or "diversification" or "modernisation" as the case may be; (c) the expressions "diversificat....
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....ct, 1968 the petitioners had the statutory remedy of making an application to the Financial Commissioner against the orders of the revisional authority and this has not been invoked. It is not that every remedy that is provided and not availed of can be said to be an impediment for invoking jurisdiction of this Court under article 226 of the Constitution of India. The rule of exhaustion of statutory remedies has been always considered to be not only a rule of policy, convenience and discretion than a rule of law, but the alternative must be shown to be an effective and efficacious one. So far as the case on hand is concerned not only substantial questions of law of great importance are involved for determination but the very allegation of the petitioners is that it is at the behest of the Minister incharge of Taxation and Excise such suo motu revisional proceedings have been initiated and that it is not as though the alternative remedy is to approach a judicial or independent Tribunal but only to the Financial Commissioner of the Government. The impugned orders, apart from being said to be illegal and without jurisdiction involve imposition of an illegal levy of substantial sum ....
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....vestigation into facts have to be undertaken. The cases before us concern merely an interpretation of the statutory notifications as well as the incentive policy declared by the State Government. 26.. It is necessary to advert to also the plea of political bias or mala fides and legal malice, strongly projected both in the petitions and also at the time of the preliminary hearing of the writ petitions, when it came up for orders regarding admission. But, at the time of final hearing, Shri Shanti Bhushan, learned Senior Counsel for the petitioners, while stating that it would be sufficient for the petitioners to rest their case squarely on the legal issues alone, and that it was not absolutely necessary to go into the issue relating to political bias or mala fides at length, and further indicated that the facts on record would themselves go to show that something unusual, which does not meet the eye seem to have happened and he would rest content with that stand, for the present. In view of this, the learned Senior Counsel for the respondents also, except pointing out that the order passed on May 27, 1997 was sent with the files to the Commissioner on May 29, 1997 itself has not ....
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....the principle of promissory estoppel, except in the excepted category of cases and situations, would operate to prevent the authorities from going behind their representation and promises and if they propose to do so, even non-statutory guidelines/policy issued by the State can be enforced against the State if (a) the person concerned shows that he has been led to take an action on the basis of the representation and (b) that he satisfied the eligibility criteria laid down for availing the exemption. Therefore, whatever may be the rights/justification for the respondent-State to contend that the petitioners have not satisfied the eligibility criteria and, therefore, not entitled to the exemption claimed, it is not given to the respondents to take the extreme and unreasonable stand that the policy/guidelines, proclaimed by them are not enforceable or that they do not create any rights enforceable in any court of law. 28.. The next issue which we consider it appropriate to go into, before undertaking the question as to whether the petitioner fulfilled the necessary eligibility criteria to claim the exemption and whether they were initially accorded the status and recognised to be ....
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....y the courts to analyse the intention or objects underlying a legislation/notification or a policy declaration and guidelines and as far as possible adopt a construction, which would favour the fulfilment of those objects, wherever possible, without doing violence to the scheme underlying or the language employed therein and not be unduly rigid or too technical to undermine or defeat the very purpose of the scheme or public interest, involved in the same. 31.. The grievances of the petitioners, which emanate out of the impugned action, in the shape of orders passed by the revisional authority, as also the consequential and related orders passed on the basis of the reasoning of the revisional authority is based upon the reasons and ultimate findings recorded on the following vital issues, assumed for adjudication by the authorities, particularly the revisional authority in this regard: (a) The petitioner-industry is not a prestigious cement industrial unit within the meaning of para 1-C of the statutory notification issued under section 42 of the Himachal Pradesh General Sales Tax Act, 1968 and the notification correspondingly issued under section 8(5)(a) of the Central Sales Tax....
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....or consideration, in the first instance. The common condition, the alleged violation of which is relied upon, for disabling the petitioner from being granted the exemption, contained in the notification dated January 30, 1996 so far as it is relevant for our purpose reads as follows: "1-C. (2) The concession of exemption from payment of tax under this Act, shall be admissible to 'other industries' only if- .......................... (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; ......................... (3) Notwithstanding anything contained in sub-paras (1) and (2), no exemption shall be granted by the prescribed authority to such other industry(i) if it is found that the evasion of tax under the Himachal Pradesh General Sales Tax Act, 1968 or the Central Sales Tax Act, 1956, has been committed by the entrepreneur (registered dealer)." 33.. The stand taken for the petitioner is that there is no purchase or sale of the minerals, involved in exploitation of mineral under a mining lease ....
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....only, it being a compensation which the occupier pays the landlord for that species of occupation which the contract between them allows. In Associated Cement Company Ltd. v. Government of Andhra Pradesh [1985] 58 STC 223, Jeevan Reddy, J., as the learned Judge then was, speaking for a Division Bench of the Andhra Pradesh High Court, exhaustively analysed this issue, with particular reference to an identical lease for the very same kind of material in respect of a dispute raised by another cement company, reviewing the catena of case law on the subject including the decision reported in [1977] 40 STC 603 (SC); AIR 1977 SC 687 (State of Madhya Pradesh v. Orient Paper Mills), and placing reliance on the decision reported in AIR 1979 SC 1669 (Shri Shri Tarakeshwar Sio Thakur Jiu v. Bar Dass Dey and Company), after exhaustively adverting to the varieties of rights given under the lease for mining and exploitation and appropriation of the minerals excavated, it was held that the lease granted does not cease to be a lease of immovable property or for that matter can be ever said to have become a mere licence and that at any rate the right to enjoy immovable property would include the rig....
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....Cooch Behar Contractors' Association v. State of West Bengal [1996] 103 STC 477 (SC) apart from the fact that the subsequent judgment of a larger Bench holding the decision in Orient Paper Mills case [1977] 40 STC 603 (SC); AIR 1977 SC 687 to be not good law was not brought to their Lordships' notice, was rendered in totally a different context as to whether such amount paid by way of royalty paid for acquisition of materials used in the execution of a works contract would constitute price of materials used in the works contract after the constitutional amendment permitting levy of sales tax, in respect of sale of goods involved in the execution of works contracts. Therefore, the amount of royalty paid in the case cannot be considered to be the sale price nor could the rights secured under or the contract of lease in form "K" could be said to constitute any agreement of sale/purchase of goods so as to attract liability under section 5A of the Himachal Pradesh General Sales Tax Act. 35.. So far as the alleged violation of the provisions of the Central Sales Tax Act, 1956 is concerned, the same is based upon either on account of nonfiling or valid or defective and irregular filing....
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.... rate in section 8(1) of the Central Sales Tax Act, and that it is only thereafter he can claim the benefit of the notifications. The revisional authority has chosen to quote out of context the observations found made, with reference to the peculiar facts and circumstances of the case and the points projected in the said decision. Relying upon the decision reported in [1993] 90 STC 128 (Bimetal Bearings Ltd. v. State of Tamil Nadu) rendered by a Division Bench of the Madras High Court, it was also contended that even if C forms have been filed, as in the present case, including in one form more than one transaction exceeding the monetary limit, the defect alleged cannot be held to be so fundamental in respect of any essential feature going to the root of the matter, so as to affect the legality and validity of the C forms. In any event, as urged for the petitioners, such forms are permitted to be filed not only before the finalisation of the assessment and even at the appellate and revisional stages also and the same cannot be the ground for once and for all rejecting the claims or condemning the petitioners for non-compliance with/violation of the provisions of the Act, Rules and ....
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.... and contents thereof and extracting them also, wherever found necessary, in the earlier part of this judgment. The sum and substance of the reasoning of the respondents, particularly the revisional authority is that the petitioners, not having satisfied the eligibility criteria stipulated cannot be accorded the status of the prestigious cement industry within the meaning of the relevant notifications and that, therefore, the exemption allowed to avail of the incentives by the grant of such a status and the certificate in form STE-II, in recognition thereof is liable to be set aside and has been rightly set aside too, and, therefore, there are no merits in the challenge directed against the orders of the revisional authority in these cases. That the petitioners have not satisfied the essential fact that it is a "prestigious cement industrial unit", has been found by the revisional authority on the basis that the requirements of para 1-C of the notification dated January 30, 1996 remained unfulfilled for the principal reason that the registration accorded to the petitioners, as such, and obtained by them was only in the meeting held on January 23, 1996 and the certificate of registr....
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.... and that the mechanical orders passed and the consequent issue of certificate in form STE-II stood vitiated, calling for interference in the hands of the revisional authority and that therefore the revisional authority whose powers are said to be co-extensive with those of the original/competent authority was stated to be well within its rights, power and competence to go into the questions in the manner and as was expected of the original authority and set aside the certificate in form STE II, for the reasons and grounds specifically found and rendered by the revisional authority. 38.. Both the learned Senior Counsel appearing on either side, invited our attention extensively and elaborately to the relevant notifications as well as the impugned orders to substantiate their respective stand. We have carefully considered the submissions in this regard keeping in view the elaborations made of their submissions with particular reference and emphasis made by them on the purport, import as also the language used in the notifications and the objects and aims of the notifications and the objects of the scheme underlying the various notifications, noticed supra. A compendious considera....
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.... from the date of issue. The Revised Rules regarding grant of incentives to Industrial units in Himachal Pradesh, 1991 w.e.f. April 1, 1991 came to be issued by the notification dated March 27, 1991. The next notification, by way of amendment to the above Rules came to be issued on July 31, 1992 and by then sections 42 and 42A of the General Sales Tax Act came to provide powers appropriate to formulate such schemes. Whether reference was made specifically thereto or not, it is well-settled that when statutory power is shown to exist and notifications satisfying its requirements come to be issued, such as those issued on July 31, 1992, December 1, 1994 and July 6, 1995, the notifications will have to be traced to the proper source of power and it may not be justified for the respondents to take extreme stands about the non-enforceability of those provisions in any court of law. The notifications issued in the Industries Department also must be traced and are referable to the powers available under sections 42 and 42A, as much as the notifications issued on January 30, 1996, and all these notifications have to read properly and harmoniously, as aimed towards the achievement of the sa....
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....trial undertaking (unit Himachal) at village Suli, Tehsil Arki, District Solan, Himachal Pradesh, whose proposal was the manufacture of all types of cement was approved by IPARA vide No. Ind. Dev. F(34) IPARA-268/89 dated August 19, 1990 for a capacity of 8 lakh tonnes per annum of cement, have commenced commercial production with effect from 26th September, 1995. This is also to certify that the installed capacity at Darlaghat is 10 lakh tonnes per annum of clinker and 6 lakh tonnes per annum of cement grinding as on date. The company has so far made fixed capital investment in this industrial undertaking, viz., land Rs. 6.5 crores, building Rs. 66.5 crores, plant and machinery Rs. 306 crores and other fixed assets Rs. 12.00 crores, totalling Rs. 391 crores and employed 353 persons. It is further certified that the company shall manufacture cement to the extent of a minimum of 75 per cent of the installed capacity or approved capacity of 8 lakh tonnes of cement manufacturing whichever is higher, at Darlaghat and the company is permitted to export/transport the remaining clinker, including surplus clinker by way of excess capacity utilisation, outside Himachal Pradesh vide IP....
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....e that it only from the date of certificate as such, the status could be claimed or acquired. It is in order to substantiate such queer logic of reasoning, in the reply filed by them by way of counter to the writ petition and also at the time of hearing, a plea was raised that the registration accorded on January 13, 1993, if at all was of a project/blue print on paper and unless the registration as shown to be of a fulfledged unit functional in all respects, satisfying the criteria, even on the date of according registration by the empowered committee, it is no registration in the eye of law for the purpose of fulfilling the norm of having got to have been registered between May 1, 1992 and March 31, 1995. The scheme of incentives introduced with changes and modifications, from time to time, from March 27, 1991 and till July 6, 1995 and the notifications dated January 30, 1996 issued under the Himachal Pradesh General Sales Tax Act and Central Sales Tax Act have to be harmoniously and reasonably construed keeping in view the purpose underlying the scheme to make it a real and effective as well as workable one, and not to be construed in the manner of "shylocks demand for justice".....
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....there is any dispute/doubt in interpreting and implementing them-the same shall be referred to the decision of the Financial Commissioner/Secretary of the Industry Department only making his decision also to be final and, therefore, no authority or officer of the Excise and Taxation Department, be it even the revisional authority could arrogate to themselves such jurisdiction to decide as to whether even at the initial stage the industry/dealer concerned has to be accorded or acquired such status. Since, the exemption in the case on hand by way of incentive is of the levy of sales tax, and it is the Excise and Taxation Laws a department which has to administer the taxation matters, the notification dated January 30, 1996 confers power upon the authorities of the Excise and Taxation Department to oversee, even after the grant of the required status as such by the empowered committee, whether it continued to satisfy the requirements and eligibility criteria, as long and so long as the exemption is sought to be availed of, so that an industrial unit, which though satisfied initially the norms, but by ceasing to continue to conform the same and thereby having lost or forfeited the righ....
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....contradictory in the Rules, as amended on December 1, 1994 for the continued validity and enforceability of the registration certificate dated January 13, 1993, a fair and proper reading of the Rules, particularly, rule 1.2 would itself go to show that the very purpose and object of the Rules though amended from time to time is to allow industrial units to avail of all new incentives also as long as such units continued to enjoy the status earlier accorded to them. It should all the more be so, when no additional or further criteria has been stipulated to be satisfied. Likewise, the plea on behalf of the respondents that the petitioners having committed a lapse in not opting for and exercising option within 90 days as provided under the amended Rules themselves are ineligible to claim benefit of exemption, has no merit of acceptance. This plea proceeds on the supposition that 90 days period has to be computed from the date of trial production. In our view, the date of commencement of production has to be computed from the date of commencement of effective and real production for commercial purposes and not a token or trial production for the purpose of testing. 42.. The further ....