AI Drafter 
TaxTMI 
TaxTMI 
2016 (6) TMI 140
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....cular bearing no. 4411 dated 23.01.2013, issued by respondent 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 Uttarakhan....
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....ice vide its response dated 19.11.2015 which is enclosed as Annexure no. 7. The petitioner submitted 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....
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....., Section 6(3)(d) to the UKVAT Act. Also, the respondent no. 2 has based the impugned order, on the judgment of a Division Bench of this Court in HUL case. 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 Ut....
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....ed that the proviso of a statute must be given an interpretation limited to the subject-matter of the enacting provision. Reliance is placed on the decision of this court rendered by four Judge Bench 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 ....
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....case. 33. The above case was approved by this Court in CIT v. Indo Mercantile Bank Ltd. where Kapur, J. held that the proper function of a proviso was merely to qualify the generality of the main enactment by providing an exception and taking out, as it were, from the main enactment a portion which, but for 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 em....
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....ich is covered by the main provision, by carving out an exception to the said main provision. (vide Ram Narain Sons Ltd. v. CST, AIR p. 769, para 10 and A.N. Sehgal v. Raje Ram Sheoran, SCC p. 315, para 14.) 22. In a normal course, a proviso can be extinguished from an exception for the reason that exception is intended to restrain the enacting clause to a particular 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 ....