TaxTMI 
TaxTMI 
TaxTMI 
2018 (10) TMI 145
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....from 01.04.2013, that the State Government has impost VAT of 5% on 'liquor'. 3. During the period from 01.04.2015 to 31.03.2016, the petitioner had deposited VAT on sale of Rectified Spirit at the rate of 5%. The adjudicating authority by impugned assessment order came to the conclusion that as per Serial No.56, Part II of Schedule II of VAT Act on 'liquor', the petitioner is liable to pay VAT at the rate of 5% whereas, the 'Rectified Spirit' does not come within the aforesaid Schedule and, therefore, the petitioner is liable to pay VAT at the rate of 14% and vide assessment order dated 24.07.2017 (Annexure P/3), directed to pay difference along with interest and penalty. The order impugned is appealable under Section 46 of the VAT Act and if appellant is dissatisfied with the order of first Appellate Authority then, he can file second appeal before the Appellate Board - respondent No.3 - Commissioner of Commercial Tax under Section 46(6) of VAT Act. 4. The petitioner is challenging the Constitutional validity of the procedure prescribed under Section 46 and 53 of the M.P. VAT Act, 2002, read with Rule 60 of M.P. VAT, Rules, 2006 and to declare the levy of....
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....r direction that the respondent State cannot deny bonafide assesses Input Tax Rebate and cannot seek to fasten liability of guilty / fraudulent dealers on such bonafide assessess, once they produce valid documents evidencing the discharge their duty under the Madhya Pradesh VAT Act, 2002; g. issue an appropriate writ, order or direction, holding the provisions of section 20(5) of Madhya Pradesh VAT Act, 2002, as unconstitutional, for being completely arbitrary, unreasonable and imposing unreasonable restrictions, and also on account of excessive delegation; h. to issue an appropriate writ, order or direction that the procedure prescribed under section 46 and 53 of the Madhya Pradesh VAT Act, 2002, read with Rule 60 of the Madhya Pradesh VAT Rules, 2006, as regulating the procedure of filing of appeal and its summary rejection as ultra vires and liable to be struck, down as arbitrary, ultra vires and unconstitutional, since the procedure established is unfair, unjust and unreasonable as there is no power with the appellate authority to waive or reduce the quantum of pre deposit in appropriate cases of undue hardship and where the actions of the respondent are without authority o....
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....ons delivered by the Apex court and came to the conclusion that when the appeal was preferred by the petitioner company itself, the same could be entertained after compliance of the statutory provisions. The Madras High Court dismissed the writ petition, following the decision of the Apex court in the case of Vijay Prakash D. Mehta and Jawahar D. Mheta V/s. Collector of Custom reported as 1988 (4) SCC 402 and has held as under :- "That the right to appeal neither existing right nor ingredient of natural justice, the principle of which must be followed in all judicial and quasi judicial adjudications. The right to appeal is a statutory right and which can be circumscribed by the conditions under the ground. It is not the law that adjudication by itself following the rules of natural justice would be violative of any right, constitutional or statutory, without any right of appeal, as such. If a statute gives a right to appeal upon certain conditions, it is upon fulfilment of those conditions that the right becomes vested and exercisable to the appellant. From the aforesaid findings of the Hon'ble Apex Court it become apparent that any mandatory condition for pre deposit of cert....
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....llate Court would have directed not to deposit the required tax before filing the appeal. If the appellate court would have directed not to deposit the required tax, such order would have been without jurisdiction. Even this court while exercising writ jurisdiction is not empowered to pass such type of order when the statute does not permit not to deposit the requisite tax. Hence, we do not have any scintilla of doubt in our mind that in the absence of depositing the required tax, the Appellate Authority (respondent No.2) rightly did not admit the appeal of the assessee /writ petitioner. We do not find any illegality in the impugned order dt. 29.5.2012 (Annexure P/1) passed by the Appellate Authority. Resultantly, this petition fails and is hereby dismissed with no order as to costs." 11. Recently, the Division Bench of this Hon'ble Court at main seat, Jabalpur in the case of M/s. Walmart India Pvt. Ltd V/s. State of M.P. in W.P.No.19769/2014 by order dated 22.01.2015 has directed as under :- "On the appellant's depositing 10% of the amount as proposed by the impugned order within a period of 10 days from today before the Appellate Authority, the Appellate Authorit....
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....man being whereas the rectified is not consumable for human being. It is also submitted that in the case of State of M.P. & Ors. V/s. Gwalior Alcobrew Pvt. Ltd, (Special Leave to Appeal (C) No(s).2895/2017, the Apex court on 17.4.2017, dealt with the related issue regarding levy of commercial tax on the exported Indian Made Foreign Liquor. The issue of excitability and power to levy commercial tax of rectified spirit is a different matter as the same is not liquor and, therefore, the petitioner is not liable to pay the VAT Tax. 15. As per the provisions of Schedule I, Part IV of Entry 1 of the VAT Act, if any specific entry is not available in the Schedule, the same shall be dealt with the aid of residuary entry and in this matter as per residuary entry of the VAT Act, the rectified spirit has been taxed at the rate of 14%. The spirit is a raw material of liquor and liquor is consumable and fit for human consumption, so rectified spirit is not liquor. In the case of Synthetic & Chemical Ltd. V/s. State of U.P. & Ors., 1990 (1) SCC 109 , Hon'ble Supreme Court has held that the rectified spirit which is known as Ethyl alcohol or absolute alcohol is not fit for human consumption ....
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....wn on the ground that court thinks it unjustified. Parliament and the legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The court cannot sit in judgment over their wisdom. 19. In the case of Income Tax Officer, Tuticorin V/s. T.S. Devinatha Nadar etc. AIR 1968 SCC 23, the Apex Court in paragraph 30 (at pg. 635) of the Report observed as follows : "30. From the foregoing decisions it is clear that the consideration whether a levy is just or unjust, whether it is equitable or not, a consideration which appears to have greatly weighed with the majority, is wholly irrelevant in considering the validity of a levy. The courts have repeatedly observed that there is no equity in a tax. The observations of Lord Hatherley, L.C. in (1869) 4 Ch. A 735. "In fact we must look to the general scope and purview of the statute, and at the remedy sought to be applied, and consider what was the former state of the law, and what it was that the legislature contemplated," were made while construing, a non-taxing statute. The said rule has only a limited application in the interpret....
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....passed by a legislature unconstitutional are well known. There is always a presumption in favour of constitutionality, and a law will not be declared unconstitutional unless the case is so clear as to be free from doubt; "to doubt the constitutionality of a law is to resolve it in favour of its validity". Where the validity of a statute is questioned and there are two interpretations, one of which would make the law valid and the other void, the former must be preferred and the validity of law upheld. In pronouncing on the constitutional validity of a statute, the court is not concerned with the wisdom or unwisdom, the justice or injustice of the law. If that which is passed into law is within the scope of the power conferred on a legislature and violates no restrictions on that power, the law must be upheld whatever a court may think of it. (See State of Bombay v. F.N. Balsara.)" 23. While dealing with constitutional validity of a taxation law enacted by Parliament or State Legislature, the court must have regard to the following principles: (i), there is always presumption in favour of constitutionality of a law made by Parliament or a State Legislature (ii), no enactment can be....