TaxTMI 
TaxTMI 
2015 (9) TMI 1212
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.... Megha Assam Coal Mines (India) Ltd. had set up a new industrial unit for manufacture of washed clean coal from raw coal, medium coal and lump coal. In such process, the ash content of coal would be reduced from 25 per cent. to five per cent. It may be stated that the Government of Assam had announced an industrial policy in the year 1991, giving incentives to new industries to be established within the State of Assam after April 1, 1991. In terms of the industrial policy, the new industrial units were to be granted reliefs by way of sales tax exemption, etc., on the sale of finished products manufactured in eligible industrial units as well as on purchase of raw materials for a period of seven years. In terms of the said industrial policy, eligibility certificate for such incentives was to be issued to the eligible industrial units by the Industries Department, Government of Assam. To attain eligibility, an industrial unit was required to fulfil various conditions, as laid down in the industrial policy. To give effect to the industrial policy, the Government of Assam issued notification dated August 16, 1995 framing a scheme, called "the Assam Industries (Sales Tax Concessions) Sc....
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....l order was issued by the said General Manager on June 5, 2000. Aggrieved, respondent No. 1 along with one of its directors approached this court by filing W. P. (C) No. 3101 of 2000 (Megha Assam Coal Mines (India) Ltd. v. State of Assam [2005] 140 STC 339 (Gauhati)), challenging the legality and validity of the aforesaid cancellation orders dated June 3, 2000 and June 5, 2000. Writ petition was contested by the third respondent, i.e., Commissioner of Taxes by filing affidavit. A Single Bench of this court, by the judgment and order dated June 5, 2004 [See [2005] 140 STC 339 (Gauhati)] allowed the writ petition by quashing the orders of cancellation. Hence, this appeal. Heard Mr. M. Nath, learned State Counsel appearing for the appellant and Dr. AK Saraf, learned senior counsel for the respondents. Mr. Nath, learned counsel for the appellant, submits that the eligibility conditions prescribed under the Industrial Policy of 1991 and the 1995 Scheme were not complied with by respondent No. 1. Respondent No. 1 was therefore not an eligible industrial unit under the policy as well as under the Scheme, not entitled to the benefits granted thereunder. Eligibility certificate was iss....
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....ether the particular activity involves manufacturing process would have to be examined in the light of the definition of "manufacture", as given in the Assam General Sales Tax Act, 1993 ("the 1993 Act" hereafter). Definition of "manufacture" under the 1993 Act is a wide one encompassing a wide range of activities, which would include conversion of raw coal, lump coal or medium coal into washed clean coal. In his reply, Mr. Nath submits that an application has been filed, which has been registered as Misc. Case No. 980 of 2012, for impleadment of State of Assam in the Industries Department and General Manager, District Industries and Commerce Centre, Kamrup, Guwahati as appellants in the present writ appeal. Therefore, court may implead the said two parties as appellants even at this stage and decide the appeal on the substantive issue. Submissions made by learned counsel for the parties have received the due consideration of the court. After hearing learned counsel for the parties, we are of the opinion that the following issues arise for consideration in this appeal: "Whether the writ appeal is maintainable in its present form ? Whether cancellation of the eligibility certifi....
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.... against the Government. It says that in a suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be, in the case of the Central Government, the Union of India and in the case of the State Government, the State. The aforesaid provisions were examined by the apex court in [2003] 3 SCC 472 (Chief Conservator of Forests, Government of A. P. v. Collector). That was a case where there was dispute between the Departments of the Government regarding title of the lands in question. Commissioner of Survey, Settlement and Land Records took the view that those were patta lands and upheld the decision of the Collector. The dispute arose in the backdrop of land acquisition proceedings. At that stage, the Chief Conservator of Forest moved a writ petition before the High Court. In the above backdrop, the apex court held that in a lis dealing with the property of a State, there can be no dispute that the State is a necessary party and should be impleaded as provided in article 300 of the Constitution and section 79 of the Civil Procedure Code. It was held that in the absence of the State, the suit will be bad for non-joinder of necessary party. It ....
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....ication of the appeal to the above issue only. Whether cancellation of eligibility certificate was justified. As already noticed above, the show-cause notice was issued to respondent No. 1 for cancellation of eligibility certificate on two grounds. Firstly, no manufacturing process was involved in the conversion of raw coal, etc., into washed clean coal. Secondly, respondent No. 1 did not install any plant and machinery for the purpose of manufacturing washed clean coal. In the cancellation order dated June 3, 2000, after noticing that respondent No. 1 was granted eligibility certificate for manufacture of washed clean coal from raw coal, lump coal and medium coal, it was held that there was no substantial difference between the raw material and the finished product. Both were same, i.e., coal. Therefore, no manufacturing process took place. Since there was no manufacture, respondent No. 1 was not an eligible unit entitled to the benefits under the policy and the scheme. Eligibility certificate was wrongly issued. It was also held that no factory shed or office room was found in the premises of respondent No. 1 to suggest any manufacturing activity. As such, the eligibility certi....
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....ecify that the industrial unit must be operated mechanically or with the aid of power. Therefore, this aspect of the impugned order does not hold water." We agree with the view taken by the learned single judge. The above could not have been a ground for cancellation of the eligibility certificate. As pointed out by the apex court in Pondicherry State Cooperative Consumer Federation Ltd. [2007] 10 VST 630 (SC); [2008] 1 SCC 206, since exemption was granted with open eyes to the particular industry, the State cannot be allowed to turn around later on and take a stance that the assesse was not entitled to the exemption on the ground that it did not manufacture any goods. Regarding termination of eligibility certificate under clause 12 of the Assam Industries (Tax Exemption for Pipeline Units) Order, 2005, which deals with similar situation, a Division Bench of this court in the case of Sunil Kumar Taparia v. State of Assam reported in [2013] 57 VST 552 (Gauhati); [2013] 1 GLR 14 held that termination of eligibility certificate on change of opinion as to the eligibility of the certificate holder to get the benefit would be clearly ultra vires the power conferred under clause 12 of th....