TaxTMI 
TaxTMI 
2025 (7) TMI 142
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.....11.2022, passed by the Commissioner of Taxes, Assam [the respondent no. 2]. 2. For the purpose of understanding the issues raised in these six writ petitions, the writ petition, W.P.[C] no. 388/2023 is considered as the lead case and the facts stated therein are delineated hereinbelow, as the nature of assail in the other writ petitions, in essence, are substantially similar. The necessary and relevant facts for the other writ petitions would be adverted to wherever it is found necessary. I. Facts of the cases :- 3. The petitioner is a private limited company incorporated under the provisions of the Companies Act, 1956 and it has its Registered Office at Kolkata, West Bengal. It has an industrial unit at Village - Kukurmari, Post Office - Dhaligaon, District - Chirang, BTAD, Assam where it is engaged in the business of manufacture of Calcined Petroleum Coke [CPC]. 4. The petitioner has stated that during the period under reference, it purchased Raw Petroleum Coke [RPC] within the State of Assam on payment of local taxes and after conversion of Raw Petroleum Coke [RPC] into Calcined Petroleum Coke [CPC], different quantities of Calcined Petroleum Coke [CPC] were sold in....
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.... already deposited the tax amount @ 1% [taking the benefit of remission @ 99% vide the Notification no. FTX.66/2009/117 dated 26.12.2011] on sales made by it during the reference period. The respondent no. 4 further mentioned that Section 15[b] of the CST Act provided for reimbursement of local tax paid on purchase of declared goods subject to the condition that the Central Sales Tax had been paid on inter-State sale of such declared goods. The respondent no. 4 as the Assessing Authority had also mentioned about the dismissal of Civil Appeal no[s]. 5518- 5519 of 2013, preferred by the State of Assam before the Hon'ble Supreme Court. 7. The Joint Commissioner of Taxes, Assam, Guwahati ['the respondent no. 3'], O/o the Commissioner of State Taxes, Assam addressed an Office Letter to the respondent no. 4 on 27.09.2019 in reference to the Office Letter dated 13.09.2019 of the respondent no. 4. It was informed by the Office Letter dated 27.09.2019 that the petitioner was eligible to claim refund under Section 15[b] of the CST Act of the local tax paid on purchase of declared goods subject to the condition that Central Sales Tax had been paid on inter-State sale of such declared g....
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....ale or purchase of any goods covered by Section 14 of the CST Act and such goods were subsequently sold in the course of inter-State trade or commerce, then the amount of tax paid under the local tax law would be refundable to the dealer paying such taxes. 10. When after determination of the amount reimbursable under Section 15[b] of the CST Act and submission of the application seeking refund, no refund was granted to the petitioner despite making repeated approaches before the respondent authorities for early refund of the Value Added Tax paid on Raw Petroleum Coke [RPC] purchased within the State of Assam, the petitioner preferred a writ petition, W.P.[C] no. 3328/2022. The writ petition, W.P.[C] no. 3328/2022 was disposed of by an Order dated 23.05.2022 directing the respondent no. 2 to consider the petitioner's application for refund and to pass a reasoned order thereon within a period of two weeks from the date of receipt of a copy of the Order and thereafter, to make and complete further processing within a period of six weeks from the date of the reasoned order to bring the exercise to its logical end. The writ petition was preferred also in connection with the reimburse....
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.... petitions -W.P.[C] no. 412/2023, W.P.[C] no. 413/2023, W.P.[C] no. 414/2023, W.P.[C] no. 415/2023 and W.P.[C] no. 416/2023 - have been preferred assailing the impugned Orders passed for different Assessment Years/period. For ready reference, the details of all the six writ petitions, which are filed seeking similar reliefs, are mentioned in the following Table-I :- Table-I Writ Petition Assessment Year Order no. Date W.P.[C] no. 388/2023 2012-2013 CTS-207/2019/144 07.11.2022 W.P.[C] no. 416/2023 2013-2014 CTS-852/2019/128 07.11.2022 W.P.[C] no. 415/2023 2014-2015 CTS-853/2019/113 07.11.2022 W.P.[C] no. 413/2023 2015-2016 CTS-854/2019/115 07.11.2022 W.P.[C] no. 414/2023 2016-2017 CTS-855/2019/110 07.11.2022 W.P.[C] no. 412/2023 2017-2018 CTS-856/2019/101 07.11.2022 14. I have heard Dr. A. Saraf, learned Senior Counsel assisted by Mr. P. Baruah, Mr. N.N. Dutta, Mr. P.K. Bora & Mr. S.J. Saikia, learned counsel for the petitioner; and Mr. B. Gogoi, learned Standing Counsel, Finance & Taxation Department, Assam assisted by Mr. H. Baruah, learned counsel for all the respondents. III. Submi....
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....was also well settled even before the assessment proceedings that both Raw Petroleum Coke [RPC] and Calcined Petroleum Coke [CPC] were included within Coke which, in turn, falls within the ambit of the phrase, 'Coal, including Coke in all its forms'. Such a position was subsisting since 18.08.1971 when the Hon'ble Supreme Court rendered the decision in Civil Appeal no. 1612 of 1968 : India Carbon Ltd. vs. Superintendent of Taxes, reported in [1971] 3 SCC 612, and the position continued till the decision in Civil Appeal no[s]. 5518-5519 of 2013 : The State of Assam vs. M/s Guwahati Carbon Ltd. and another etc., rendered on 12.01.2017, and thereafter. The same position was clarified by this Court also on 16.12.1991 in Civil Rule no. 163 of 1987 : M/s India Carbon and others vs. State of Assam and others, reported in [1992] 1 GLR 82 [DB]. It was the State of Assam who despite the settled position of law once again took the matter to the Hon'ble Supreme Court in Civil Appeal no[s]. 5518-5519 of 2013. 15.3. By referring to a decision of the Hon'ble Supreme Court in Assistant Commissioner, Income Tax, Rajkot vs. Saurashtra Kutch Stock Exchange Limited, [2008] 14 SCC 171, Dr. Saraf has....
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.... Re-Rolling Mills [P] Ltd. vs. Assistant Commissioner and another, [2007] 4 SCC 13; have also been relied upon for the same point. 15.6. It is submitted that the law declared by the Supreme Court under Article 141 of the Constitution of India is binding on all in the country and when a law has been declared by the Hon'ble Supreme Court, it is duty of all the High Courts and other authorities including the taxing authorities to act in accordance with the law declared. It is immaterial whether a person was a party to a case before the Hon'ble Supreme Court or the High Court. The respondent no. 3 has also failed to consider the fact that it was the State of Assam which, despite the law declared and in force since long, had preferred the appeals, Civil Appeal no[s]. 5518-5519 of 2013 which were finally dismissed on 12.01.2017. In support of such contentions, a decision of the Hon'ble Supreme Court in M.S.L. Patil, Assistant Commissioner of Forests, Solarpur [Maharashtra] and others vs. State of Maharashtra and others, [1996] 11 SCC 361, has been referred to. 15.7. The learned Senior Counsel for the petitioner has also referred to the decisions:- [i] K.I. Shephard and oth....
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.... of rectification cannot be equated with the power of review. Rectification implies correction of an error, which is apparent on the face of the record. The same proposition is also applicable in the cases in hand. 16.3. It is his further contention that it is not open for the petitioner to seek support from the decision in Civil Appeal no[s]. 5518-5519 : The State of Assam and others vs. M/s Guwahati Carbon Ltd. and others, delivered on 12.01.2017, for the reason that the petitioner was not a party therein. The petitioner cannot be permitted to re-agitate its claim for reimbursement as the petitioner had not pursued the claims for a substantial long period of time and was sitting on the fence waiting for the outcome of proceedings initiated by others. There was inordinate delay in pursuing the claims. In such view of the matter, the cases of the petitioner have suffered from delay and laches as well as from acquiescence. The decision in M/s Rup Diamonds and others vs. Union of India and others, [1989] 2 SCC 356 has been referred to and relied upon in support of such submissions. 16.4. On the point that parity cannot be claimed by a party if its claim has suffered from delay ....
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....he Assessment Year: 2012-13. It appears from the annual return that the dealer paid 1% tax and claimed remission of 99% tax as per provisions of the Assam Industries [Tax Exemption] Scheme, 2009. The CA's audit report was submitted in the office on 04.07.2016. Similarly, in the return filed under the CST Act, 1956, in Form III, the dealer had paid tax @1% of the CST due and claimed 99% tax remission as per the Assam Industries [Tax Exemption] Scheme, 2009. It is pertinent to mention that the petitioner did not claim any reimbursement of the VAT paid on RPC in terms of Section 15[b] of the CST Act. There was nowhere whisper of any claim of reimbursement due to the petitioner. 4. Refund Application : The dealer made an application under Section 50[1] of the AVAT Act, 2003 read with Rule 29 of the AVAT Rules, 2005 on 09.01.2017 claiming a refund of Rs. 39,76,187/-, being the amount of VAT paid on purchase of RPC, which is a declared goods, on the ground that CST was paid on inter-State sale of CPC, which is the same item citing the judgment of the Hon'ble Gauhati High Court in India Carbon Ltd. vs. State of Assam, [1992] 1 GLR 82. Notably, the applic....
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..../s 15[b] of the CST Act is not admissible on stock transfer. From the above discussions, I do not have any hesitation to hold that : 1] The audit assessment of Carbon Resources Pvt. Ltd. was completed u/s 36[1] of the AVAT Act on 12.12.2017, wherein no reimbursement u/s 15[b] of the CST Act was found due and the demand notice were issued to the dealer which were not contested by the dealer. The original assessments made by the jurisdictional Assistant Commissioner of Taxes, Bongaigaon did not allow the claim of the dealer for reimbursement of VAT made under section 15[b] of the CST Act read with Section 50[1] of the Assam VAT Act, 2003 and the dealer did not challenge such assessment orders. Hence, the original assessment orders had attained finality. 2] The subsequent rectification by the assessing officer on his own u/s 83 of the AVAT Act on 01.10.2019 is not in accordance with the provisions of the Act, as the rectification can only be made for any error apparent on the face of the record. It is a settled position that 'a mistake apparent form the record' means a mistake which is obvious, patent and self-evident from the records of the case and not som....
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.... by the dealer. The original assessments made by the jurisdictional Assistant Commissioner of Taxes, Bongaigaon did not allow the claim of the dealer for reimbursement of VAT made under Section 15[b] of the CST Act read with section 50[1] of the Assam VAT Act, 2003 and the dealer did not challenge such assessment orders. Hence, the original assessment orders had attained finality. 2] The subsequent rectification by the assessing officer on his own u/s 83 of the AVAT Act on 01.10.2019 is not in accordance with the provisions of the Act, as the rectification can only be made for any error apparent on the face of the record. It is a settled position that 'a mistake apparent form the record' means a mistake which is obvious, patent and self-evident from the records of the case and not something which can be established by a long-drawn process of reasoning on points on which there may conceivably be two opinions. Besides the mistake must be evident from the 'record of the case'. In a proceeding of rectification, the assessing authority cannot change his opinion. 3] It is a settled principle of law that those persons who did not challenge the wrongful action in their cases and acqu....
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.... 15[b] of the CST Act, 1956. In view of the foregoing reasons, the refund proposal of M/s Carbon Resources Pvt. Ltd., Bongaigaon, for the year 2014-15 in respect of Rs. 23,45,905/-, under the Assam Value Added Tax Act, 2003 is hereby rejected. Year: 2015-2016 Writ Petition [C] no. 413/2023 Order no. Grounds of Rejection CTS-854/2019/115 1] It is a settled principle of law that those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after a long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such persons cannot claim the benefit of the judgement rendered in the case of similarly situated persons to be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim. Needless to say that M/s Carbon Resources Pvt. Ltd. was not a party in the case before the Apex Court or High Court. 2] It is pertinent to mention that Section 15[b] of the CST Act, 1956 provides for reimbursement of local tax paid on intra-State purchase of declared ....
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....ered in the case of similarly situated persons to be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim. Needless to say that M/s Carbon Resources Pvt. Ltd. was not a party in the case before the Apex Court or High Court. 2] It is pertinent to mention that Section 15[b] of the CST Act, 1956 provides for reimbursement of local tax paid on intra-State purchase of declared goods subject to the condition that CST is paid on inter-State sale of such declared goods. The dealer did not deposit the full amount of CST, which is a condition precedent for claiming the reimbursement of VAT as per provision of Section 15[b] of the CST Act, 1956. In view of the foregoing reasons, the refund proposal of M/s Carbon Resources Pvt. Ltd., Bongaigaon, for the year 2017-18 in respect of Rs. 54,29,808/-, under the Assam Value Added Tax Act, 2003 is hereby rejected. VI. The respondents' stand in the Affidavits-in-Opposition : 19. An affidavit-in-opposition on behalf of the respondent no. 2 has been filed through the respondent no. 5 in each of the six writ petitions taking a common stand as....
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....g with another writ petition, W.P.[C.] no. 6864/2023 in view of the projection that there are common issues involved in all of them. The common issues are with regard to the matter of purchasing Raw Petroleum Coke [RPC] within the State of Assam on payment of local taxes and the validity of the claim for reimbursement if after conversion of Raw Petroleum Coke [RPC] into Calcined Petroleum Coke [CPC], the dealer sells the Calcined Petroleum Coke [CPC] in the course of inter-State trade or commerce paying taxes on such sold Calcined Petroleum Coke [CPC] as per the provisions of the CST Act and other ancillary issues. However, other than the common issues, the factual matrices leading to the passing of the impugned Orders dated 07.11.2022 in this batch of writ petitions are found to be different from the factual matrix involved in the other writ petition, W.P.[C.] no. 6864/2023. In view of the same, it is found proper to dispose of the present batch of writ petitions by a separate Judgment. 22. From the contents of the afore-mentioned impugned Orders, it has emerged that the impugned Orders were passed in deference to the direction made in the Order dated 23.05.2022 whereby the wri....
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....he CST Act for the Assessment Years : 2012-2013 and 2013-2014 were completed on 12.12.2017 and Demand Notices were issued on 13.12.2017. Similarly, for the Assessment Years : 2014-2015, 2015-2016, 2016-2017 and 2017-2018, Audit Assessments were completed on 01.10.2019 and Demand Notices were issued on 03.10.2019. At the time of Audit Assessments, the petitioner's claim for remission of 99% of the due tax was rejected for the reason that the petitioner did not possess the Eligibility Certificate [EC] under the Assam Industries [Tax Exemption] Scheme, 2009 till the date of assessment. [v] On completion of Audit Assessments and at the time of issuance of Demand Notices, the Assessing Officer did not allow reimbursement of Value Added Tax paid on purchase of Raw Petroleum Coke [RPC]. Absence of challenge to the Audit Assessment Orders or non-preference of any statutory appeal/revision for providing reimbursement of tax paid on purchase of Raw Petroleum Coke [RPC] by the petitioner has amounted to acceptance of the Assessment Orders resulting in attainment of their finality. [vi] The subsequent rectifications of the Assessment Orders by the Assessing Officer suo moto u....
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....] Act, 2017, provided for the definition of 'declared goods' and 'declared goods' used to mean goods declared under Section 14 to be of special importance in inter-State trade or commerce. 28. Section 14 of the Central Sales Tax Act, 1956, prior to its omission by the Taxation Laws [Amendment] Act, 2017, used to deal on the subject-matter, 'Certain goods to be of special importance in inter-State trade or commerce'. Section 15 of the Central Sales Tax Act, 1956, prior to its omission by the Taxation Laws [Amendment] Act, 2017, used to deal on the subject-matter, 'Restrictions and conditions in regard to tax on sale or purchase of declared goods within a State'. Section 14 and Section 15 had been omitted by the Taxation Laws [Amendment] Act, 2017 w.e.f. 01.07.2017 with the introduction of the Goods and Services Tax Act, 2017. Prior to their omissions, the parts of Section 14 and Section 15 which are of relevance for the cases in hand, used to be read as under :- 14. Certain goods to be of special importance in inter-State trade or commerce. - It is hereby declared that the following goods are of special importance in inter-State trade or commerce :- [i]....
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....orfeited or all of them due from, and payable by the dealer on the date of passing of order for such refund. [2] Where the amount of input tax credit admissible to a registered dealer for a given period exceeds the tax payable by him for the period, he may, subject to such restrictions and conditions as may be prescribed, seek refund of the excess amount, by making an application in the prescribed form and manner, containing the prescribed particulars and accompanied with the prescribed documents to the Prescribed Authority, or adjust the same provisionally with his future liability to tax in the manner prescribed : Provided that, the amount of tax or penalty, interest or sum forfeited or all of them due from, and payable by, the dealer on the date of such adjustment shall first be deducted from such refund before adjustment. Section 52 - Interest [1] A registered dealer entitled to refund in pursuance of any order under this Act including assessment or in pursuance of any order by any Court, shall be entitled to receive, in addition to the refund, simple interest at the rate of nine percent per annum for the period commencing after ninety days o....
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.... is a by-product of the oil industry. Raw Petroleum Coke, abbreviated as Coke, Pet-Coke or Petcoke, is a carbonaceous solid derived from oil refinery cooker units or other cracking processes. Calcined Petroleum Coke [CPC] as a product emerges after Raw Petroleum Coke [RPC] is subjected to the industrial process of calcination. Calcined Petroleum Coke [CPC] is created by processing Raw Petroleum Coke [RPC] into rotary kilns. Since the product of Calcined Petroleum Coke [CPC] undergoes an irreversible chemical change in the industrial process, it is chemically and physically a different item from Raw Petroleum Coke [RPC]. Calcined Petroleum Coke [CPC] is used as a feedstock for wide range of products such as aluminum, paints, coatings, etc. which are used by a number of industries. 33. An issue arose whether Petroleum Coke would come within the phrase, 'Coal, including Coke in all its forms' appearing in item [ia] of Section 14 of the CST Act. By an amendment made in the year 1964 in the Assam Sales Tax Act, 1947 w.e.f. 01.09.1964, Coke was taken out of the list of goods on which no sales tax was levied. When the Superintendent of Taxes, Assam informed the dealer/company, M/s Indi....
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.... by reference to the word 'Coal'. 35. It has been authoritatively held in India Carbon Limited [supra] that Coal includes Coke in all its forms and Petroleum Coke is one of the forms of Coke. Thus, Petroleum Coke was included within the declared goods of special importance in inter-State trade or commerce, as per Section 14 of the CST Act. [v] The Assam [Sales of Petroleum and Petroleum Products, including Motor Spirit and Lubricants] Taxation Act, 1955:- 36. The Assam [Sales of Petroleum and Petroleum Products, including Motor Spirit and Lubricants] Taxation Act, 1955 ['the Act, 1955' and/or 'the 1955 Act', for short] was an Act passed by the State of Assam for imposition of tax on sales of Petroleum and Petroleum Products including Motor Spirit and Lubricants for the purpose of making an addition to the public revenue. Section 3 of the said Act was the charging provision. 37. By an amendment of 1986, sub-section [1] of Section 3 of the 1955 Act which provided for the rate of tax, was amended. Prior to amendment, sub-section [1] of Section 3 had provided for levy and collection from every dealer a tax on his turnover or sales of Petroleum Coke @ 3 paise in the rupee. W....
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.... Bench had held that Raw Petroleum Coke [RPC] and/or Calcined Petroleum Coke [CPC] would come within the ambit of 'Coke in all its forms' and therefore, Raw Petroleum Coke [RPC] and Calcined Petroleum Coke [CPC] were to be treated as one and the same for the purpose of item [ia] of Section 14 of the CST Act although the commodities were different physically. After analyzing the restrictions dealt by Section 15 of the CST Act, as it stood then, on sales tax law of the State, the Division Bench had held that though the Assam Act had treated Raw Petroleum Coke [RPC] and Calcined Petroleum Coke [CPC], which were goods declared, as different commodities, for the purposes of sales tax law of the State, such treatment as two different commodities could not prevail over Section 14 of the CST Act. The Division Bench had gone on to hold that if Raw Petroleum Coke [RPC] was purchased inside the State and Calcined Petroleum Coke [CPC] was also sold inside the State, after calcination, and if the State law would impose tax on Raw Petroleum Coke as well as on Calcined Petroleum Coke [CPC], it would amount to imposition of tax on a sale or purchase inside the State of goods declared at more than ....
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....nt company claimed refund of the sales tax paid by it under the State law on purchase of raw material. By a Common Order dated 10.04.1992 passed in two writ petitions, the claim was allowed by the Patna High Court. In Civil Appeal nos. 6073-74 of 1994, the State of Bihar, as contended before the High Court, contended also before the Hon'ble Supreme Court that though the Entry under Section 14[ia] of the CST Act provided for 'Coal, including Coke in all its forms, but excluding Charcoal', if the Raw Petroleum Coke [RPC] had undergone a process of manufacture which ultimately resulted in Calcined Petroleum Coke [CPC], it was a different product for the purpose of taxation. It was contended that in the field of taxation, the State would have a wide choice in choosing the object of taxation. 39.1. The Hon'ble Supreme Court had held that when the Entry in Section 14[ia] of the CST Act had said 'Coke in all its forms', there was no possibility of bringing Coke of different forms except under Entry [ia] in Section 14, by observing as under :- 18. We are totally unable to accept this line of reasoning. Once the entry is 'Coke in all its forms' irrespective of the fact Raw Petro....
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....bon Limited. The writ petition was preferred as the said petitioner's application for refund of taxes was rejected by the State authorities. Another writ petition, W.P.[C] no. 6646 of 2010 [M/s Brahmaputra Carbon Limited vs. the State of Assam] was preferred on similar grounds. Both the writ petitions - W.P.[C] no. 4586 of 2008 & W.P.[C] no. 6646 of 2010 - were allowed by the Division Bench of this Court by a common Judgment and Order dated 12.12.2012 by following the decision in Universal Hydrocarbons Co. Ltd [supra]. The Division Bench had also set aside the impugned orders whereby the applications for refund were rejected and directed the State respondents to take a fresh decision in the matter within a period of 3 [three] months. [x] Civil Appeal no[s]. 5518-5519 of 2013 : The State of Assam & others vs. M/s Guwahati Carbon Ltd. & another etc. 42. Against the common Judgment and Order dated 12.12.2012 passed in W.P.[C] no. 4586 of 2008 & W.P.[C] no. 6646 of 2010, the State of Assam preferred two Special Leave Petitions [SLPs] before the Hon'ble Supreme Court. The SLPs were initially registered and numbered as SLP [Civil] no[s]. 12907-12908/2013 and the same were subsequen....
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....hall be deposited by the appellants with the Registry of this Court within two months from today. The amount so deposited may be withdrawn by the respondents on furnishing suitable bank guarantee with the satisfaction of the Registrar [J-I] and also an undertaking that in the event of Appeals being allowed the amount so withdrawn shall be restituted to the appellants along with 10% simple interest from the date of withdrawal. [iii] In the event of Appeals being dismissed, the appellants shall pay to the respondents 50% of the amount which has been kept in separate account along with 10% simple interest from today. In this case also the similar interim order is passed and the petition is disposed of subject to the result of the Civil Appeal 12907-12908/2013. [xi] Final Outcome of Civil Appeal no[s]. 5518-5519 of 2013 : The State of Assam & others vs. M/s Guwahati Carbon Ltd. & another etc. 44. The Hon'ble Supreme Court of India found the issue involved in the civil appeals squarely covered by the Judgment in Universal Hydrocarbons Co. Ltd [supra] and had further observed that the decision in Universal Hydrocarbons Co. Ltd [supra] was rightly relied upon by the Divi....
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.... above precedents, it is evidently clear that the general principles of law which are laid down are that Petroleum Coke is one of the forms of Coke and it is covered within the phrase, 'Coal, including Coke in all its forms' under Section 14 of the CST Act and it was declared as a good of special importance in inter-State trade or commerce. A good declared as a good of special importance is also referred to as 'declared good'. Though Petroleum Coke can be classified into two commercial commodities, that is, [i] Raw Petroleum Coke [RPC], and [ii] Calcined Petroleum Coke [CPC], both of them are treated to be within the ambit of the phrase, 'Coke in all its forms' and they were treated as one and the same for the purpose of Section 14 of the CST Act although the two were different chemically and physically. The general principle of law is also laid down to the effect that if a dealer purchased Raw Petroleum Coke [RPC] within the State by paying tax levied under the local tax law and the dealer after converting the purchased Raw Petroleum Coke [RPC] into Calcined Petroleum Coke [CPC], sold the Calcined Petroleum Coke [CPC] outside the State in the course of inter-State trade or commerc....
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....d as under : Inter-State Sales Rs. 5,40,25,409/- CST @ 2% Rs. 10,80,508/- Stock transfer Rs. 3,42,42,814/- GTO Total Rs. 8,93,48,731/- Hence, in the absence of any other finding the accounts are accepted and assessment is done as shown as under : Particulars A mount [Rs.] 5% G.T.O. Rs. 8,82,68,223/- Less : Sale [export sale] U/S 5[1] 0.00 Sale [export sale] U/S 5[3] 0.00 U/s 6A Stock Transfer against 'F' Form Rs. 3,42,42,814/- Less : CST Sales Rs. 5,40,25,409/- Net VAT 0.00 Tax Payable 0.00 Interest Payable 0.00 Total tax paid 0.00 Balance due 0.00 Sd/- Assessing Officer 50. A bare look at the Assessment Order would reveal that the Assessment Order was made under Section 36[1] of the AVAT Act read with Rule 22[1][x] of the AVAT Rules. Section 36 of the AVAT Act has provided for Audit Assessment. In sub-section [1] of the Section 36, the reasons for which Audit Assessment can be undertaken are mentioned in sub-clauses [a], [b], [c] and [d]. As per sub-clause [a] of sub-section [1] of Section 36, a registered dealer can be selected for Audit Assessment by th....
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....ction [1] of Section 83, any authority including the Appellate Authority, Revisional Authority and Appellate Tribunal may, on an application or otherwise at any time within three years from the date of any order passed by it, rectify any error apparent on the face of the record. The proviso to sub-section [1] has provided that no such rectification which has the effect of enhancing the liability to pay tax or penalty or penal interest shall be made unless such authority has given notice to the person affected and has allowed him a reasonable opportunity being heard. The proviso to sub-section [1] of Section 83 of the AVAT Act is not found applicable in the case in hand. 54. Section 9[2] of the CST Act has provided that subject to the other provisions of the CST Act and the rules made thereunder, the authorities for the time being empowered to assess, re-assess, collect and enforce payment of any tax under general sales tax law of the appropriate State shall, on behalf of the Government of India, assess, re-assess, collect and enforce payment of tax, including any interest or penalty, payable by a dealer under the CST Act as if the tax or interest of penalty by such a dealer unde....
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....fund taking into account that the petitioner had already deposited tax amount @ 1% on sales and made a claim for remission of 99% of the tax amount under the Assam Industries [Tax Exemption] Scheme, 2009. In its Office Letter dated 27.09.2019, it was made clear that the petitioner would be eligible to claim refund under Section 15[b] of the CST Act of the local tax paid on purchase of declared goods subject to the condition that Central Sales Tax had been paid on inter-State sale on such declared goods. The respondent no. 4 was also directed to submit the proposal, albeit for refund, through the jurisdictional Deputy Commissioner of Tax with year-wise undertaking for necessary action from the respondent no. 2. Having regard to the dates of passing of the Assessment Orders under Section 36[1] of the AVAT Act on 12.12.2017, as referred above, and the dates of passing of the Assessment Orders by way of rectification on 01.10.2019, it is clear that the Orders by way of rectification were passed within the limitation period of three years from the dates of passing the Assessment Orders. 57. In such backdrop, it does not lie on the part of the respondent no. 2 to make any adverse obse....
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....scribed Authority', as per Section 2[37] of the AVAT Act, means any person appointed to assist the Commissioner under sub-section [1] of Section 3 to whom all or any of the powers of the Commissioner for the levy and collection of tax conferred by or under the AVAT Act or the AVAT Rules has been delegated by the Commissioner under sub-section [9] of Section 3. It may be stated that the taxing authorities under Section 3[1] of the AVAT Act are those authorities which the Government can appoint to assist the Commissioner for carrying out the purposes of the statute, about which it would be adverted to in the paragraph 69 below. In the case in hand, no dispute has been raised as regards competence of the Assessing Authority / Prescribed Authority involved here to deal and process with an application for claiming reimbursement under Section 15[b] of the CST Act. 62. In so far as the Assessment Orders for the Assessment Years : 2012-2013 and 2013-2014 are concerned, the power under Section 83 of the AVAT Act is found to have been exercised coupled with the power vested under Section 9[2] of the CST Act. The respondent no. 2 is right in observing that a mistake apparent on the record ....
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.... preference of an appeal by the petitioner. 65. In Makkad Plastic Agencies [supra], the respondent assessee filed a rectification / amendment application purportedly under Section 37 of the Rajasthan Sales Tax Act, 1994 ['the 1994 Act', for short] after an order passed in appeal by the Rajasthan Taxation Board. The rectification / amendment application was decided by the Rajasthan Taxation Board by modifying its earlier order passed in appeal. Being aggrieved by the order passed in rectification / amendment application, a revision petition was preferred by the appellant therein before the High Court under Section 87 of the 1994 Act. The High Court dismissed the revision petition. Thereafter, the appellant preferred the appeal before the Hon'ble Supreme Court. The appeal was preferred on the ground that the subsequent order passed by the Taxation Board on the rectification / amendment application was in excess of jurisdiction provided under Section 37 of the 1994 Act. 65.1. Section 37 of the 1994 Act had provided for rectification of a mistake, which mistake had to be a mistake apparent from the record and any officer or any authority constituted under the 1994 Act was empower....
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....on 'mistake apparent on record' and if the assessee was aggrieved by the said order, it could have challenged the order by taking appropriate proceedings. 67.1. Under Section 254[2] of the IT Act, the Tribunal has a power to rectify its order on any 'mistake apparent from the record' at any time within four years from the date of the order if the mistake is brought to its notice by the assessee or the Assessing Officer. The Hon'ble Court has considered what is a 'mistake apparent from the record' and also the similar expression, 'error apparent on the face of the record'. The core issue taken up for consideration is whether non-consideration of a decision of jurisdictional High Court or the Supreme Court can be said to be a 'mistake apparent from the record'. 67.2. The Hon'ble Supreme Court has observed that non-consideration of a decision of the jurisdictional High Court or the Supreme Court is such a mistake, which can be said to be a 'mistake apparent from the record' and the same can be rectified under Section 254[2] of the IT Act. If the point is covered by a decision of the jurisdictional court rendered prior or even subsequent to the order of rectification, it can be s....
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....ejection of the claim for reimbursement by the Commissioner of Taxes, Assam, that is, the respondent no. 2 is that the petitioner had not deposited the full amount of the Central Tax Act which, according to the respondent no. 2, is a condition precedent for claiming reimbursement of the Value Added Tax as per Section 15 [b] of the CST Act. 70.1. From a reading of Section 15[b] of the CST Act, quoted above, it would appear that there were certain pre-conditions which were required to be fulfilled for claiming reimbursement of the tax under Section 15[b] of the CST Act. The conditions were - [i] that the tax had been levied under the State law, that is, the AVAT Act in respect of sale or purchase inside the State of any declared goods; [ii] that such declared goods were sold in the course of inter-State trade or commerce; and [iii] that the tax had been paid under the CST Act in respect of the sale of the declared goods in the course of inter-State trade or commerce. If the above conditions were fulfilled then the tax levied under the State law would be liable to be reimbursed to the person making such sale of the declared goods in the course of inter-St....
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.... the tax payable shall be deposited into the Government Account, It is, however, made clear that the eligible unit shall be eligible to charge the tax amount in the tax invoice / bill / cash memorandum issued. 72.2. Clause [3] of Para 3 of the Scheme, 2009 reads as under :- 3. Tax payable during the return period by an eligible unit shall be calculated according to the following formula :- [a] Tax payable = Output Tax plus actual or notional tax liability under the Central Sales Tax Act, 1956 [Central Act 74 of 1956] minus Input Tax: Provided that in a case where the unit is engaged in manufacture of goods taxable at the first point of sale in the Fourth Schedule of the Act, the amount of tax payable during the return period shall be the tax liability on intra-State sale and sales in course of inter-State trade or commerce : [b] The amount of tax available for partial exemption to an eligible unit possessing valid Certificate of Entitlement shall be ninety nine percent of the amount of tax payable in accordance with tax return and the balance one percent of the tax payable shall be deposited into the Government Account. It is, however, made cl....
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....amed thereunder. The formats for filing such tax return and annual return are also prescribed in the Scheme, 2009. It has been provided that the eligible unit has to submit such tax return and annual return in the prescribed formats annexed to the AVAT Rules till the grant of Certificate of Entitlement [CE]. The eligible unit has to furnish the tax return and annual return in the formats annexed to the Scheme, 2009 after receipt of the Certificate of Entitlement [CE] under the Scheme, 2009. 74. There is no dispute to the facts that the petitioner unit has been granted Eligibility Certificate [EC] and the Certificate of Entitlement [CE] required under the Scheme, 2009 for seeking tax exemption. It is mentioned in the impugned Orders that the petitioner has been issued Eligibility Certificate [EC] by the Industries Department, Government of Assam vide EC no. AIDC/US/EC/623/10/67 on 18.06.2019. By the said Eligibility Certificate [EC], tax incentives were granted for the period from 30.11.2012 to 29.11.2019, subject to a monetary ceiling of Rs. 7,38,28,517/-. The Commissioner of Taxes, Assam has also mentioned that on the basis of the Eligibility Certificate [EC] dated 18.06.2019, ....
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....Act. The said notification was published in the Assam Gazette in its Issue no. 525 dated 30.12.2011. Vide the said notification, it has been notified that a registered dealer, who purchases goods specified in the Second, Third and Fifth Schedule appended to the AVAT Act within the State of Assam, manufactured by an industrial unit eligible under the Scheme, 2009 and sells such goods in the course of inter-State trade or commerce or in the course of export out of the territory of India, shall not be entitled to input tax credit for the amount of tax shown to have been charged in the corresponding tax Invoice issued by the eligible industrial unit in respect of such sale. 78. The object and purpose of the Notification dated 26.12.2011 is non-entitlement of a registered dealer who purchases goods from an industrial unit eligible under the Scheme, 2009 and sells such goods in the course of inter-State trade or commerce or in the course of export out of the territory of India, to claim Input Tax Credit for the amount of tax shown to have been charged in the corresponding tax invoice issued by the eligible industrial unit in respect of such sale. In so far as the eligible industrial u....
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....s the case may be, shall be paid by every dealer as provided in the section itself. Section 7 speaks of exemption. Sub-section [3] of Section 7 stipulates that the State Government may, by notification and subject to such conditions or restrictions as it may impose, exempt from sales tax or purchase tax certain sales or purchases as the case may be. The question of exemption arises only when there is a liability. Exigibility to tax is not the same as liability to pay tax. The former depends on charge created by the statute and the latter on computation in accordance with the provisions of the statute and rules framed thereunder if any. It is to be noted that liability to pay tax chargeable under Section 3 of the Act is different from quantification of tax payable on assessment. Liability to pay tax and actual payment of tax are conceptually different. But for the exemption the dealer would be required to pay tax in terms of Section 3. In other words, exemption presupposes a liability. Unless there is liability, question of exemption does not arise. Liability arises in terms of Section 3 and tax becomes payable at the rate as provided in Section 12. Section 11 deals with the point o....
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....nion it does not logically follow that absence of collection means an absence of liability. We are also of the opinion that the reliance on Town Municipal Committee [AIR 1964 SC 1166] by the Division Bench which involved an interpretation of 'continued to be levied' and 'to be applied to the same purposes' in Article 277 of the Constitution was misplaced. While that case did hold that in the circumstances before them 'levy' was intended to include 'collection', in our opinion the logic or ratio of that case cannot be extended so far as to say that every 'levy' must include collection and without such collection no levy can be said to have been made. 85. Having regard to the various provisions of the Scheme, 2009 and the propositions of law expounded in the above decisions, it can be said that the liability of payment of the Central Sales Tax by an industrial unit eligible for the benefits under the Scheme, 2009 was that 1% of the Central Sales Tax Act was to be deposited by an eligible industrial unit like the petitioner and it could take the benefit of 99% remission extended by the Scheme, 2009. 86. Thus, this Court finds force in the submission advanced on behalf of the pet....
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....her, it has been observed that the principle is, however, subject to well-recognised exception in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the courts earlier in time succeeded in their efforts, then such persons cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim. 89.1. However, an exception is carved out from the above exception by stating that the exception will not apply in those cases where the judgment pronounced by the court was a judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all situated persons. Such a situation can occur when the subject-matter of the decision touches upon the pol....
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....e merits and permissibility of the claim. 91.1. The petitioners alleged that their claims were similar to two other Export Houses, who had filed writ petitions in the year 1984 before the High Court for issuance of appropriate writs to the authorities to re-validate the Imprest Licences. Those writ petitions were initially allowed by the learned Single Judge of the High Court and the Division Bench, later on, affirmed the decision of the learned Single Judge. The Special Leave Petitions, preferred by the Union of India in 1985 and 1986, were dismissed by the Hon'ble Supreme Court. The petitioners said that they made the demand for re-validation immediately after the decision of the High Court and claimed that the rejection of their claims was wholly discriminatory, as there was no basis on any distinction. 91.2. Dismissing the petitioners' writ petition, the Hon'ble Supreme Court had held that the petitioners were re-agitating which they had not pursued for several years. The petitioners were found not vigilant but were content to be dormant choosing to sit on the fence till somebody else's case came to be decided. There was an unexplained and inordinate delay in preferring t....
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....owever, acquiescence will not apply if lapse of time is of no importance or consequence. 40. Laches unlike limitation is flexible. However, both limitation and laches destroy the remedy but not the right. Laches like acquiescence is based upon equitable considerations, but laches unlike acquiescence imports even simple passivity. On the other hand, acquiescence implies active assent and is based upon the rule of estoppel in pais. As a form of estoppel, it bars a party afterwards from complaining of the violation of the right. Even indirect acquiescence implies almost active consent, which is not to be inferred by mere silence or inaction which is involved in laches. Acquiescence in this manner is quite distinct from delay. Acquiescence virtually destroys the right of the person. [See : Vidyavathi Kapoor Trust v. CIT, (1992) 194 ITR 584]. Given the aforesaid legal position, inactive acquiescence on the part of the respondent can be inferred till the filing of the appeal, and not for the period post filing of the appeal. Nevertheless, this acquiescence being in the nature of estoppel bars the respondent from claiming violation of the right of fair representation. 94. Acqu....
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....istinct concepts of leviability and payability and the entitlement of the petitioner to seek exemption from depositing 99% of the tax payable as per the Scheme, 2009. 96. The power of judicial review under Article 226 of the Constitution of India to issue a writ in the nature of certiorari is exercisable when a statutory authority vested with a power to decide a matter within the four corners of the law, decides the matter taking into account irrelevant factors and leaving out relevant factors, as such procedural errors impact the legality and validity of the decision, to the prejudice of a party, like the petitioner in the case in hand, which has a right for consideration of its valid claim for reimbursement of the Central Sales Tax paid on Calcined Petroleum Coke [CPC], manufactured out of Raw Petroleum Coke [RPC] paying Value Added Tax [VAT], sold in the course of inter-State trade and commerce as per the provisions of Section 15[b] of the CST Act read with Section 50 and Section 52 of the AVAT Act as both Calcined Petroleum Coke [CPC] and Raw Petroleum Coke [RPC] were in the category of goods of special importance, that is, declared goods. 97. For the observations made, t....