TaxTMI 
TaxTMI 
2022 (3) TMI 632
X X X X Extracts X X X X
X X X X Extracts X X X X
....is a form of toasted bread that, unlike untoasted bread which is soft, is crunchy and it is consumed more as a biscuit than as bread or even toasted bread. Bread is exempted from value added tax in the State. The petitioner passed off its product as a form of bread and took advantage of the exemption. Upon the Department regarding rusk as different from bread and seeking to impose VAT under the miscellaneous entry which pertains to unspecified products, the petitioner challenged the same. At the end of the adjudication at three levels before the Department and the Board of Revenue, the petitioner failed to impress the authorities that rusk had to be treated as bread and permitted the exemption. Hence, the present revision. 4. By the judgment and order of January 28, 2020, this Court rejected the petition for revision without going into the merits thereof and solely on the ground that the revision had been carried to this Court beyond the time envisaged in Section 70 of the Meghalaya Value Added Tax Act, 2003. This Court held that since Section 70(1) of the said Act required a revision to be carried to the High Court "within sixty days after being notified of the decision" and th....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 8. The State also places Section 110 of the said Act, which is found in Chapter XI of the statute covering miscellaneous matters, to suggest that since such provision specifically refers to the applicability of Sections 4 and 12 of the Limitation Act, 1963 in certain cases, the other provisions of the Act of 1963 are deemed to have been expressly excluded. 9. Without prejudice to the State"s contention that this Court has no inherent authority to condone the delay, as in the present case, as no provision in such regard exists in the said Act, the State asserts that the invocation of Section 14 of the Act of 1963 is completely misplaced as it cannot be said that the twin conditions of having filed the proceedings bona fide in a forum without jurisdiction and prosecuting such proceedings in good faith before such forum lacking jurisdiction, were complied with; or, any case of such compliance has been made out. 10. At the outset, it must be observed that any process of adjudication has to be fair and reasonable. Both in judicial and quasi-judicial proceedings, a party has to be afforded a reasonable opportunity to present its case; the case presented must receive due consider....
X X X X Extracts X X X X
X X X X Extracts X X X X
....wn to his satisfaction from the receipt of a notice of demand in respect thereof: Provided that no appeal shall be entertained by the said authority unless he is satisfied that such amount of tax, penalty or interest, as the case may be, as the appellant may admit to be due from him and such percentage of the disputed tax, as may be prescribed, has been paid. (2) ... (3) ... (4) ..." "66. Suo motu revision and revision by Commissioner upon application- (1) Subject to such rules as may be made and for reasons to be recorded in writing, the Commissioner, may on his own motion, revise any assessment made or order passed by a person appointed under sub-section (1) of Section 25 to assist him. (2) Subject to such rules as may be prescribed and for reasons to be recorded in writing, the Commissioner may, upon application revise any order, passed by a person appointed under Section (1) of Section 25 to assist him." "67. Review of order- (1) Subject to such rules as may be made, any assessment made or order passed under this Act or the rules made there under by any person appointed under sub-section (1) of Section 25, may be re....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssam) and the reliance placed therein on the dictum in the judgment reported at (2009) 5 SCC 791 (Commr. of Customs and Central Excise v. Hongo India (P) Ltd.). In Patel Brothers, Section 81 of the Assam Value Added Tax Act, 2003, fell for consideration as to whether such provision permitted a belated petition for revision to be entertained by condoning the delay. The Supreme Court referred to Section 29 of the Act of 1963 and held that even in a case where the special law does not expressly exclude the power of an adjudicating authority to condone any delay or the nature of the subject-matter and the scheme of the special law does not expressly exclude such power, a Court cannot interpret the law in such a manner so as to read into the statute an inherent power for condoning the delay when the special law excludes the operation of Section 5 of the Act of 1963 by necessary implication. The judgment in Patel Brothers referred to the decision in Hongo India and the reasons in support of the dictum in Hongo India found in paragraphs 30 to 35 of the report. 16. The petitioner herein has sought to distinguish the ratio in Patel Brothers and Hongo India by relying on a judgment report....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. (3) ... (4) ..." 18. Section 29(2) of the Act of 1963 has several components. For a start, the provisions of any special or local law should prescribe a period of limitation different from the period prescribed by the Schedule to the Act of 1963; secondly, the provisions of Section 3 of the Act of 1963 would then apply as if the specially prescribed period by the applicable law were the period prescribed by the Schedule to the Act of 1963; and, Sections 4 to 24 (inclusive) of the Act of 1963 would apply for the purpose of determining the period of limitation under the special or local law to the extent to which such provisions "are not expressly excluded by such special or local law". 19. In the present case, Section 70 of the said Act prescribes....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ause for the delay being shown to the satisfaction of the High Court. There is no outer limit fixed for the authority to condone the delay to be exercised. 23. Section 69 of the said Act pertains to appeals to the Appellate Tribunal and permits an appeal to be entertained after the period of the stipulated 60 days if sufficient cause for the delay is shown, but fixes an outer time-limit of one year from the date of being served with the notice of the decision impugned. In other words, by the prescription contained in Section 69(2) of the said Act, however genuine the cause may be for the delay, there is a jurisdictional bar for the appellate tribunal to entertain an appeal under such provision if it is not filed within one year of the appellant being served with the notice of the impugned decision. Section 69 of the said Act is somewhat similar to Section 34 of the Arbitration and Conciliation Act, 1996 and a host of similar provisions in various statutes which allow the delay beyond the stipulated period to be condoned but fix an outer limit for such purpose. Such provisions are perfectly in consonance with Section 29(2) of the Act of 1963 and, by virtue of the express outer li....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the relevant provision. In the solitary case where a power to condone the delay has been conferred and an outer limit of time for the exercise thereof has been stipulated, as in Section 69 of the Act, both the power to condone and the outer time limit for a party to seek condonation have been expressly indicated. 27. Quite plainly, in the scheme of Chapter VII of the said Act, notwithstanding such chapter being the entire repository of the right to challenge any order passed under the said Act, there does not appear to be any express exclusion of the power to condone the delay pertaining to revision under Section 70 of the Act. Such view is supported by the dictum in Superintending Engineer. 28. Section 110 of the Act is a red herring. Such provision expressly pertains to Chapter VI of the said Act and confines the applicability of only Sections 4 and 12 of the Act of 1963 in respect of matters covered by Chapter VI of the said Act. By no stretch of imagination, may Section 110 of the said Act be seen to have any bearing on Chapter VII of the said Act or on Section 70 thereof, which are material for the present purpose. 29. It is for the same reason that the dictum in Hong....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bered that the Court or the relevant forum is conferred the authority to be subjectively satisfied as to the cause for the delay and no objective criteria have been specified in such regard. It must also be said in the same breath that the element of subjectivity that is available must be guided by judicially established principles and the subjectivity cannot depend on the day of the week that the matter falls for consideration or the weather outside or like irrelevant considerations. 34. Ordinarily, Courts are slow in shutting out a party on the prescription of limitation unless negligence on the part of the party or the lack of diligence is crass and obvious. It is elementary that there can be no presumption that a party seeking to assert a right will deliberately while away the time and approach a judicial or quasi-judicial forum beyond the permissible period without there being some semblance of a cause. Indeed, the presumption is otherwise: that a party seeking to undo a prejudice or canvass a right would, definitely, be diligent and the delay, if any, must have been genuine. The prescription of limitation originated in the Justinian times and is founded on the equitable pr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....red by the petitioner in such regard. 38. The matter, therefore, progresses to the business end for consideration on merits and as to whether the exemption applicable to bread in the State may be availed of by the petitioner for its manufacture of rusk which may contain the same material that goes into bread. 39. At first blush, the argument put forth by the petitioner appears to be attractive; after all, it is nobody"s case that the petitioner buys bread from the market and manufactures rusk therefrom. According to the petitioner, the activity conducted by the petitioner is as indicated at page 9 of the present petition: "The petitioner further begs to state that the item "Rusk" is nothing but a form of bread and is in the nature of toasted bread and there is no manufacturing process that can be said to have taken place making the item "rusk" as separate from "bread". "Rusk" is a form of bread which can last longer as its moisture content is reduced by toasting the sliced bread to a given specification. After the preparation of bread is completed, the process of its conversion into rusk begins by slicing the bread into small pieces which are then dried/toasted in an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d rice, it would not imply that such varieties cease to be rice within the meaning of the relevant entry. In Mamta Surgical, the issue was somewhat different, and, as such, the dictum therein may not be applicable to the present case. It was the admitted position in that case that the appellant before the Supreme Court carried on business of procuring cotton and transforming it into surgical cotton. Apart from the Supreme Court holding that cotton and surgical cotton were completely different products, it is evident that the raw material procured by the assessee in that case was subjected to a manufacturing process to be converted into surgical cotton. As such, merely because the assessee paid sales tax in procuring its raw material, it could not claim exemption of sales tax on its manufactured product. In the present case, there is nothing in the order impugned that brings out that the petitioner herein buys bread and converts such bread into rusk. If such were to be the case, obviously rusk would be subject to VAT, notwithstanding bread being exempted. 42. What is apparent in this case is that the petitioner may be using the same raw material as in the manufacture of bread, wh....