TMI Blog1994 (9) TMI 309X X X X Extracts X X X X X X X X Extracts X X X X ..... vil) No. 931 of 1988 - - - Dated:- 16-9-1994 - VENKATACHALIAH M.N. AND JEEVAN REDDY B.P. JJ. Mrs. K. Amareswari, Senior Advocate (A. Subba Rao, S.D. Sharma and D.S. Mahra, Advocates, with her), for the respondents. Ashok H. Desai, Senior Advocate (S. Ganesh and Ms. Vijay Lakshmi Menon, Advocate, with him), for the petitioners. -------------------------------------------------- The judgment of the Court was delivered by B.P. JEEVAN REDDY, J.- The petitioner is engaged in the manufacture, inter alia, of vanaspati. It has a plant at Ghaziabad in Uttar Pradesh. With a view to ensure supply of vanaspati at a uniform rate throughout the country, the Government of India had evolved, in consultation with the manufacturers of vanaspati, a scheme known as "All-India voluntary price control system", whereunder the manufacturers of vanaspati were obliged to sell vanaspati at a uniform price throughout the country. Oil is the main raw material for manufacturing vanaspati. Part of the oil so required was being imported through the agency of State Trading Corporation and sold to various manufacturers all over the country. Very often, the State Trading Corporation d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rious High Courts became payable when the stay orders were vacated. These amounts shall be paid, subject to such convenience as the State Trading Corporation may grant. We recommend that such of the petitioners who are liable to pay the amounts as aforesaid, may be granted the facility of paying the same in four equal monthly instalments, with interest at 12 per cent per annum from the date of payment, with monthly rests. There will be no order as to costs." (The writ petitioner was not one of the petitioners in the aforesaid batch.) Pursuant to the observations made in the above order, the Government of India constituted a committee known as "Parmeshwaran Committee" (hereinafter referred to as "the Committee") with the following terms of reference: "1. To examine the representations submitted by individual vanaspati manufacturers and their associations to Government before March 7, 1982 (i.e., within the time-limit fixed by the Supreme Court by their order dated February 8, 1982) against the existing State Trading Corporation's scheme about freight equalisation charges included in the release price of imported oils. 2. To consider various relevant issues such as equalisati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be Rs. 100. (ii) Alternative No. 2: State Trading Corporation should charge sales tax on release price and give discount of an amount equivalent to the sales tax. 4.22. In both the systems sales should be made against proper declaration forms which allow a concessional rate of tax. Where declaration forms are not submitted, the manufacturers should be charged higher rate of sales tax in States where a higher rate is applicable." After considering the said suggestions, the Committee recommended the acceptance of the second alternative. In para 6.3 of its report, the Committee observed thus: "(a) The second alternative on sales tax reimbursement by State Trading Corporation through credit notice facility may be adopted. Sales tax as paid by the parties be reimbursed to them at actuals, subject to their furnishing necessary declaration forms, etc., as required under the relevant Sales Tax Acts. (Para 5.18). (b) In addition to sales tax, other statutory local levies such as octroi, etc., if any, may be reimbursed at actuals on production of necessary documentary evidence by the manufacturers. (Para 5.19)." The Government of India accepted the aforesaid recommendation an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge any tax, if the notification says so. Notification means a notification issued by the State Government under the Act. Oil is taxable at the sale point and, therefore, falls under section 4-B(1)(b), which means that if the purchasing dealer, holding a recognition certificate, furnishes the relevant certificate-called a "declaration" by rule 25-B of the Uttar Pradesh Rules-to the selling dealer, the selling dealer is obliged not to charge any tax on such sale. During the relevant period, the notification issued by the State Government provided for full exemption in such a case. It is necessary to emphasise a feature of sub-section (2) of section 4-B. A recognition certificate can be issued only to such dealer-manufacturer who intends to sell the goods manufactured by him either within the State or in the course of inter-State trade or commerce or in the course of export out of India. The reason for such exemption-a common feature in almost all the State sales tax enactments-is well-known and has been explained by this Court in Hotel Balaji v. State of Andhra Pradesh [1993] 88 STC 98 and Devi Dass Gopal Krishan Pvt. Ltd. v. State of Punjab [1994] 95 STC 170; [1994] 3 JT 239 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee and accepted by the Government of India says that "sales tax as paid by the parties be reimbursed to them at actuals, subject to their furnishing necessary declaration forms, etc., as required under the relevant Sales Tax Acts." The State Trading Corporation says that unless declaration forms, as provided by the Uttar Pradesh Sales Tax Act, are furnished by the petitioner to it, it is not entitled to or bound to reimburse the sales tax to the petitioner. By declaration forms, the Corporation means the declaration forms provided by section 4-B of the Uttar Pradesh Sales Tax Act read with rule 25-B of the Uttar Pradesh Sales Tax Rules. The petitioner, however, says that this is asking for an impossibility. It says that if it had furnished a declaration as it did, as a fact, in respect of half of its purchases of oil, no tax could have been levied or collected by the Corporation (selling dealer); in such a case, there is no question of reimbursement of sales tax. Only where the declaration was not furnished by the petitioner (purchasing dealer) that the Corporation charged and collected (i.e., passed on the burden of) the sales tax. Inasmuch as 50 per cent of its produce is taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t-indeed, it could not- furnish the declarations to the extent of half of its purchases of oil from the State Trading Corporation. If the petitioner could not furnish the declarations at the time of purchase, it cannot also furnish them at the time of claiming reimbursement. Indeed, the Act does not contemplate or permit the furnishing of declarations for purposes other than the one specified by it. This is how the problem arises-problem of interpretation of the formula-and it is real. But before we proceed to deal with the problem, we must say that explanation offered by Sri Ganesan for the words "subject to their furnishing necessary declaration forms, etc., as required under the relevant Sales Tax Acts" is no explanation in cases arising under the Uttar Pradesh Sales Tax Act. Whether it is total exemption or partial exemption (or a case of concessional rate of interest), a declaration is necessary to claim it-and such declaration has to be furnished at the time of purchase/sale and not at a later point of time, and certainly not for claiming reimbursement of tax. The sales tax enactments do not prescribe any declaration forms for claiming reimbursement in a case like the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rading Corporation has to look to the bills of sale and ascertain the amount of sales tax collected from the purchaser and refund the same. The question of furnishing the declaration forms prescribed by the Uttar Pradesh Act or Rules does not and cannot arise for the reasons explained hereinbefore. It must, therefore, be held that so far as the State of Uttar Pradesh is concerned, the purchasing dealers-manufacturers therein cannot be called upon to produce the declaration forms as a condition for claiming reimbursement. The words "subject to their furnishing declaration forms, etc., as required under the relevant Sales Tax Acts" have no application to a purchaser in the State of Uttar Pradesh who could not have furnished such a declaration, according to law, at the time of purchase of oil. If, however, it is established in a given case that a particular purchaser could have furnished the declaration according to law, but he did not do so on account of his negligence or otherwise, he may not be entitled to claim reimbursement under the said formula. Ordinarily, it must be noted, no dealer-purchaser would fail to furnish the declaration if he is entitled to do so but the possibility ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we agree that the petitioner could have approached the court earlier, it cannot be said that the writ petition suffers from such ]aches as to merit dismissal on that ground. At the same time, it must be remembered that the claim for refund in the present case does not arise from nor is it founded upon a statutory provision-much less is this a case where a provision or a notification having statutory force is struck down. The present claim is one which ought to have been agitated in a civil court. We have entertained the writ petition because a complaint of discrimination was made in implementation of a scheme of general application evolved by the committee pursuant to the observations of this Court in its order dated February 8, 1982. In such a situation, the petitioner cannot claim a greater relief than he could have claimed in the suit. Accordingly, we direct that the petitioner's claim will be limited to the period of three years prior to the date of filing of this writ petition. In so far as the period subsequent to the filing of the writ petition, i.e., up to November, 1988, is concerned, the petitioner shall be entitled to it on the same basis as the claim for the period ..... X X X X Extracts X X X X X X X X Extracts X X X X
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