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2001 (9) TMI 1103

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..... ies, had also under its industrial policy, with a view to provide impetus to speedy industrial development in the otherwise industrially backward State announced a package of incentive by notification dated March 8, 1969. With the passage of time, the necessity for the revision of the scheme already in existence was felt and the Government of Assam by a notification dated October 12, 1982 announced new package of incentive, which was called, "The 1982 Scheme". The scheme was to be given effect from October 15, 1982 and was to last up to March 31, 1985. Apart from the other subsidies and incentives, one of them was sales tax exemption. Later on the State of Assam passed an Act known as the Assam Industries (Sales Tax Concessions) Act, 1986 (Assam Act 1 of 1987) (hereinafter called "the 1986 Act"). This was with the object to consolidate and amend the provisions of law relating to sales tax in the matter of concessions to industries. By this Act the provisions of the Assam Sales Tax Act were amended to provide that no dealer would be liable to pay tax under the Assam Sales Tax Act in respect of sales of such goods produced by a new industrial unit as may be specified in the notificat .....

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..... 1989, December 20, 1989 and December 28, 1989 respectively. 3.. On May 9, 1991 a show cause notice was issued to the appellant by the Assistant Commissioner of Taxes, Tinsukia Zone directing the appellant to show cause by appearing before the authority as well as in writing as to why the assessment orders for the periods ending as mentioned above should not be cancelled and proceedings be not initiated under section 31(1) of the Assam Sales Tax Act, 1947 read with section 9(2) of the Central Sales Tax Act, 1956. The appellant showed cause, inter alia, contending that in view of the specific provision in the Assam Sales Tax Act providing that no dealer would be liable to pay tax in respect of sales of goods produced by it in the new industrial unit for a period of five years and thereby granting general exemption from sales tax, no tax is payable under the Central Sales Tax Act by virtue of section 8(2) of the Central Sales Tax Act, 1956. It was also pointed out that similar matter was pending before this Court in the case of D.K. Enterprises v. State of Assam in Civil Rule No. 1776 of 1990 and by the order dated September 17, 1990 this Court had issued rule and granted stay in re .....

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..... on 8 to assist him, is erroneous in so far as it is prejudicial to the interests of the revenue, he may, after giving the dealer an opportunity of being heard and after making or causing to be made such enquiry as he deems necessary, pass such orders thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment. (2) In the case of any order other than an order to which subsection (1) applies passed by any person appointed under section 8 to assist him, the Commissioner may, either of his own motion or on a petition by a dealer for revision, call for the record of any proceeding under this Act in which any such order has been passed and may make such enquiry or cause such enquiry to be made, and subject to the provisions of this Act, may pass such order thereon, not being an order prejudicial to the dealer, as he thinks fit. (3) In the case of a petition for revision under sub-section (2) by a dealer, the petition must be made within ninety days from the date on which the order in question was communicated to him or the date on which he otherwise came to know of it, whiche .....

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..... It was further said that mere dismissal of the S.L.P. in limine by the apex Court against the judgment of the Gauhati High Court reported as Mahavir Coke Industries v. Commissioner of Taxes, Assam [1995] 97 STC 186 would not make any difference inasmuch as, the S.L.P. had been dismissed in limine. 8.. We have heard the learned counsel for the parties. 9.. The point urged by the learned counsel for the appellant is that under section 31 of the Assam Sales Tax Act, 1947 the power of revision by the Commissioner can only be invoked if the Commissioner is of the opinion that the orders of the assessing authority is erroneous and prejudicial to the interest of the Revenue. In the present case, the order of assessment was in conformity with law and on the day when the Assistant Commissioner of Taxes passed the order on July 31, 1992. The order of the Commissioner was rather Reported as Victor Cane Industries v. Commissioner of Taxes [1998] 109 STC 72 (Gauhati). against the dicta of the apex Court in Pine Chemicals case [1992] 85 STC 432; (1992) 2 SCC 683 which judgment was rendered on 16th of January, 1992. What is to be seen is as to what is the law prevalent on the date when the a .....

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..... ion 8." 11.. It will be seen that this Court had taken the view after relying on earlier judgments of different High Courts as also observations of Supreme Court in Indian Aluminium Cables Ltd. case [1976] 38 STC 108. No doubt the view of the apex Court expressed in Pine Chemicals case [1992] 85 STC 432; (1992) 2 SCC 683 was reversed by the apex Court itself in Commissioner of Sales Tax v. Pine Chemicals Ltd. [1995] 96 STC 355; (1995) 1 SCC 58, but according to us that should not make any difference on the assessments already completed. On similar matter a division Bench of the Punjab and Haryana High Court in State of Haryana v. Free Wheels (India) Ltd. [1997] 107 STC 332 observed as under: "4. From the perusal of section 40 as reproduced above, it would be apparent that the Commissioner can call for the record of any case pending before or disposed of by any Assessing Authority or appellate authority to satisfy himself as to the legality or propriety of any proceedings or any order and pass such order in relation thereto as he may think fit. The scope of revisional powers is, thus, only to examine legality or propriety of any proceedings or any order. That being the sco .....

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..... t was pronounced on October 5, 1993, relying on earlier judgment of this Court in Muli Bash Hasta Silpa Samabaya Society Ltd. v. State of Assam (1992) 1 GLR 46 as well as Pine Chemicals case [1992] 85 STC 432 (SC); (1992) 2 SCC 683 took the view that industries like the appellant were exempt from the payment of Central sales tax under section 8(2-A) of the Central Sales Tax Act, 1956. Against the aforesaid judgment the S.L.P. filed by the Revenue was dismissed on March 3, 1997 (S.L.P. No. C5644 of 1997). Thereafter the Revenue filed a Review Petition No. 1170 of 1997 before the apex Court on the ground that the judgment reported in Pine Chemicals Ltd. v. Assessing Authority [1992] 85 STC 432; (1992) 2 SCC 683 already stood reviewed and reversed in the case reported in Commissioner of Sales Tax v. Pine Chemicals Ltd. [1995] 96 STC 355; (1995) 1 SCC 58 and therefore the order passed in the S.L.P. dated March 3, 1997 may be reviewed. However, the apex Court dismissed the review petition on July 13, 1997. From this the learned counsel emphasised that the law as it exists on the date of passing of the order has to be seen and the judgment reported in Commissioner of Sales Tax v. Pine Ch .....

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