TaxTMI 
TaxTMI 
2004 (8) TMI 681
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....f Bihar in the year 1995 evolved a new industrial policy with a view to create an environment conducive to growth of industries in the State and to utilise to its optimum advantage all the resources available in the form of surface and ground water, fertile land, mineral wealth, disciplined and skilled manpower etc. By the said policy the Government tried to attract investors from various parts of the country to invest in identified thrust areas, as also for creation of essential infrastructure including private generation. One of the areas which the said industrial policy sought to develop was in the field of metallurgical industries. As an incentive to attract investment in the State among others, the said policy provided for sales-tax incentives which included (exemption for new units in category 'B' districts) 8 years' sales-tax exemption on sale and purchase of materials from the date of commencement of production by such units located in category 'B' districts. In pursuance of the said policy, necessary exemption notifications under section 7 of the Bihar Finance Act, were also issued. The appellant having noticed the incentives offered by the State Government, by le....
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....8, the Director of Technical Development, Department of Industries, State of Bihar wrote to the appellant expressing the happiness on the decision of the appellant to put up a Cold Rolling Mill of 1.2 million tons per annum capacity and requested the appellant to go ahead with the project implementation and to keep the Government informed of the progress in this regard. By a letter dated 16.4.1999 the Commissioner and Secretary, Government of Bihar, re-assured the appellant that the Central sales-tax and Bihar sales-tax both will be exempted as provided in the policy in regard to the purchase and sale of Cold Rolling Mill. The said letter also assured that if production in the new unit of the appellant started in the year 1997 such benefit of exemption would be available up to the year 2005. It also assured that even if the industrial policy expired the facilities granted to the appellant will continue till a period of 8 years from the date of production. On 2.3.2000 exercising the power conferred under subsection 3(b) of section 7 of the Bihar Finance Act, 1981, an amendment was brought about in the notification which came into existence pursuant to the industrial policy of 199....
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....purchases and sales made in regard to the Cold Rolling Mill. This was pursuant to an order made by the Joint Commissioner of Commercial Taxes dated 16.12.2000 wherein after an elaborate inquiry and after hearing the departmental representatives, the Joint Commissioner came to the conclusion among other findings that the product manufactured by the appellant in its new unit is entirely a new product called Cold Rolled Products while the product manufactured in its old unit was a separate product called HRPs; both of which required distinctly different manufacturing processes and equipments. He also held that though the raw-material for the manufacture of CR product is HR product, the CR product is totally different both in its metallurgical components, the end-use, and the two products were commercially recognised as different products, hence, the Cold Rolled Products manufactured by the new unit being different from the Hot Rolled Product manufactured by the old unit, the appellants were entitled to exemption of sales-tax as provided under the industrial policy and the notifications, therefore, he approved the issuance of certficate. However, the Commissioner of Commercial Taxes....
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.... submitted that all other issues raised in the writ petition have to be answered in favour of the appellant. The Court also held that the only issue to be decided was whether on facts the HR product and CR product manufactured by the two units of the appellant are one and the same product or are two different products, and not on the basis of law as held by the Commissioner. On the above basis, the High Court without there being a challenge to the finding of the Joint Commissioner as to the comparability of the two products on facts, and which finding being based on material produced before the said authority, still remanded the matter to the Commissioner holding that the appellant had not produced enough material whereby it could be satisfactorily held that the CRM is a product commercially different from HRM. It is because of this limited finding that the appellant is now before us. Mr. Dushyant A. Dave, learned senior counsel appearing for the appellants, raised various grounds, attacking the judgment of the High Court including the ground that after the amendment which permitted diversification with an investment of Rs. 500 crore, nature of product manufactured by the new....
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....ioner while holding the two products to be different commodities had considered various materials to come to the said conclusion, and has given reasons for the same. He also pointed out that the Commissioner in his suo motu revisional order did not disagree with the Joint Commissioner on this question of fact but on an erroneous interpretation of the placement of the product in the same entry in the Central Sales, and following an overruled judgment of this Court, the said Commissioner came to an erroneous conclusion on a technicality, therefore, the High Court having found that technical reasoning of the Commissioner is unsustainable and having noticed the concession of the Additional Advocate General, it could not have allowed the writ petition on a ground which was neither raised nor argued before it and remanded the matter to the tribunal for a de novo inquiry by the Commissioner which would only amount to the harassment to the appellant. Mr. Altaf Ahmad, learned senior counsel appearing for the State of Jharkhand, however, contended that while it is true that the only question which arose for consideration before the High Court was in regard to the nature of product manufac....
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.... given on facts that the product is CRM. He only proceeded on a technicality relying on an erroneous judgment. In the writ petition filed by the appellant the State has filed a counter affidavit. Even in the counter affidavit the factual aspect of the product being CRM is not questioned nor do we find any argument addressed on behalf of the respondent-State before the High Court that the product manufactured by the appellant in its new unit is not CRM. It is for the first time the High Court having come to the conclusion that the finding of the Commissioner based on the judgment of this Court in Telengana Steel (supra) is erroneous, on its own proceeded to examine the material available on facts to establish whether the product manufactured by the appellant in its new unit is CRM or HRM. Even the High Court on such material that was available before it did not come to a definite conclusion that the finding of the Joint Commissioner was erroneous but it proceeded to weigh the quantity of evidence and thought it more prudent to remand the matter to take more evidence in this regard. We think in a writ petition filed under Article 226 or 227, the High Court ought not to have done such....