TaxTMI 
TaxTMI 
2016 (6) TMI 140
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.... no. 1. iii) Issue any writ, order or direction holding that Section 6(3)(d) of the UKVAT Act, does not restrict/deny ITC claim on packaging material, containers etc. purchased locally, used in the manufacture of goods in Uttarakhand and sent outside the State otherwise than by way of "sale". iv) Alternate to prayer (iii) above and in the event this Hon'ble Count is to hold that Section 6(3)(d) of the UKVAT Act denies ITC on packaging material etc. in case of transactions other than by way of sale; issue any writ, order or direction striking down Section 6(3)(d) of the UKVAT Act as being ultra vires or Article 301 and 304 of the Constitution of India; v) Issue any writ, order or direction in the nature of mandamus directing the respondent no. 2 to continue to issue Form XVI as provided under Rule 26(3) of Uttarakhand VAT Rules which are required by the petitioner for import of raw material as well as finished products. vi) Issue any writ, order or direction declaring that the respondent no. 2 has no authority in law to stop issuance of Form XVI as provided under Rule 26(3) of Uttarakhand VAT Rules. 4) The facts in the background of present writ petition are that this Court....
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....bmitted an additional response dated 20.11.2015 in addition to its response dated 19.11.2015 which is enclosed as Annexure no. 8. 6) By the impugned order, the respondent no. 2 while passing the Assessment Order in respect of the Assessment Period had rejected: (a) ITC on local sales (covered under Section 6(3)(d) of the UKVAT Act); (b) ITC on export sales (covered under Section 6(3)(b) of the UKVAT Act); (c) ITC on raw material utilized, in the production of manufactured / finished goods, which are sent out of the State on branch transfer basis, even beyond 2% (covered under proviso to Section 6(3)(d) of the UKVAT Act); (d) ITC on packaging material, containers etc., which are purchased locally, utilized in the production of manufactured/finished goods and sent outside the State on branch transfer (covered under Section 6(3)(d) of the UKVAT Act). The details of the ITC rejected by the respondent no. 2 in the impugned order are given in the following table, for ease of reference: Sr. No. Particulars Amount 1 ITC claimed by the Company relating to local sales in Uttarakhand (per Section 6(3)(a)/(d) to the UKVAT Act 3,09,649 2 ITC claimed by the petitioner in rel....
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....9) It is also submitted by learned counsel for the petitioner that in view of the fact that the impugned order was passed by respondent no. 2 based on the impugned Circular (which is binding on him as well as the Appellate Commissioner) as well as in view of the judgments passed by learned Single Judge confirmed by Hon'ble Division Bench of this Court in HUL's case, it is submitted that the statutory Appeal under Section 51 of the UKVAT Act is not an efficacious alternate remedy. In addition, it is submitted that the petitioner has challenged the impugned circular issued by respondent no. 1 as well as challenged the vires of Section 6(3)(d) to the UKVAT Act. The challenge to the same cannot be agitated by the petitioner by way of a statutory appeal under Section 51 of the UKVAT Act. Hence, it is submitted that the petitioner has no alternate remedy, except to approach this Court by way of the present writ petition. 10) Learned counsel for the petitioner also referred to Clause (d) of Sub-Section (3) to Section 6 of the Uttarakhand VAT Act, 2006 and the proviso contained therein, which read as follows: "6(3)(d) use as [raw material and consumables] in manufacturing or processing ....
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.... in Dwarka Prasad v. Dwarka Das Saraf, (1976) 1 SCC 128, the relevant para 18 of which reads thus: 18. ... A proviso must be limited to the subject-matter of the enacting clause. It is a settled rule of construction that a proviso must prima facie be read and considered in relation to the principal matter to which it is a proviso. It is not a separate or independent enactment. "Words are dependent on the principal enacting words to which they are tacked as a proviso. They cannot be read as divorced from their context" (Thompson v. Dibdin 1912 AC 533). If the rule of construction is that prima facie a proviso should be limited in its operation to the subject-matter of the enacting clause, the stand we have taken is sound. To expand the enacting clause, inflated by the proviso, sins against the fundamental rule of construction that a proviso must be considered in relation to the principal matter to which it stands as a proviso. A proviso ordinarily is but a proviso, although the golden rule is to read the whole section, inclusive of the proviso, in such manner that they mutually throw light on each other and result in a harmonious construction. 12. Further, a three Judge Bench of....
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....the proviso, would fall within the main enactment. In Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha Hidayatullah, J., as he then was, very aptly and succinctly indicated the parameters of a proviso thus: As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment, and ordinarily, a proviso is not interpreted as stating a general rule. XXXX 36. While interpreting a proviso care must be taken that it is used to remove special cases from the general enactment and provide for them separately. 37. In short, generally speaking, a proviso is intended to limit the enacted provision so as to except something which would have otherwise been within it or in some measure to modify the enacting clause. Sometimes a proviso may be embedded in the main provision and becomes an integral part of it so as to amount to a substantive provision itself. Thus, from a reading of the abovesaid legal position laid down by this Court in the cases referred to supra, it is abundantly clear that the proviso to Section 372 of Code of Criminal Procedure must be read along with its main en....
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....ar class of cases while the proviso is used to remove special cases from the general enactment provided for them specially." 13) Learned Addl. C.S.C., on the other hand, submitted that prayer nos. 2, 3, 4, 5 and 6 of the relief clause of the writ petition have already been replied by learned Single Judge on 06.04.2015 while deciding WPMS no. 532 of 2013, WPMS no. 1526 of 2014 and WPMS no. 2282 of 2014. Special Appeals were preferred by Hindustan Unilever Limited against the judgment passed by learned Single Judge. Learned Division Bench of this Court while dismissing special appeals no. 159 of 2015, 160 of 2015 and 161 of 2015, vide judgment and order dated 23.09.2015, observed as below: "43. We are not impressed at all by the said arguments. We would think that to allege lack of wisdom is beyond the province of the court to probe. The Court is concerned only with constitutionality of the statute. It is not concerned with the policy behind the law. All goods, which are manufactured, which otherwise fall within Section 6(3)(d), are treated equally. The State only wished to provide the benefit of ITC in a limited manner even in respect of raw materials used for production of finis....