TMI Blog2004 (12) TMI 372X X X X Extracts X X X X X X X X Extracts X X X X ..... is not for this Court to do so where the provisions are clear, categoric and unambiguous. - Civil Appeal No. 1922 of 1999 - - - Dated:- 16-12-2004 - VARIAVA S.N. AND LAKSHMANAN AR. AND KAPADIA S.H. JJ. A.B. Saharya, Senior Advocate (Atul Sharma, Anoop Rawat and Dinesh P. Bardarani, Advocates, with him), for the appellant. Sanjay R. Hegde, Anil Kumar Mishra and A. Rohan Singh Advocates, for the respondent. -------------------------------------------------- The judgment of the Court was delivered by Dr. AR. LAKSHMANAN, J.- In the above appeal, the appellant has impugned the judgment dated November 12, 1998 passed by the High Court of Karnataka whereby the order of the Additional Commissioner of Commercial Taxes dated May 22, 1998 was upheld. By this order, the Additional Commissioner of Commercial Taxes disallowed the claim of the appellant for concessional rate of tax on the inter- State sales effected by the appellant on the basis of portions of form C marked as duplicate and the indemnity bonds furnished by the appellant for the loss of portions of form C marked as original. 2.. The assessing authority has disallowed the benefit of concessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was filed in this Court by the dealer. 4.. We heard Mr. A.B. Saharya, learned Senior Counsel for the appellant and Mr. Sanjay R. Hegde, learned counsel for the respondent. Mr. A.B. Saharya made the following propositions at the time of hearing: (1) The prescribed form C is executed in several identical parts marked Original , Duplicate and Counterfoil respectively. Where the part marked Original is lost but, the dealer selling the goods furnishes to the prescribed authority the other part marked Dupli- cate which is also primary evidence of the said document by virtue of the principles enshrined in section 62 of the Evidence Act, 1872, the same should be accepted as complete compliance of the requirement under rule 12(1) of the Central Sales Tax (Registration and Turnover) Rules, 1957 (Central Rules) and rule 6(b)(ii) of the Central Sales Tax (Karnataka) Rules, 1957 (State Rules) for levy of tax at 4 per cent under sub-sections (1) and (4) of section 8 of the Central Sales Tax Act, 1956 (Central Act). (2) In any event, filing of the Original portion of the C form is not mandatory, but directory; and, filing Duplicate part thereof is sufficient compliance for l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. (5) Commissioner of Sales Tax v. Delhi Automobiles [1981] 48 STC 333 (Delhi) upheld by the honourable Supreme Court in See [1997] 104 STC 75 (SC).(1997) 10 SCC 486 was a case where both portions marked Original and Duplicate were lost and the dealer claimed benefit of lower rate of tax on the basis of photocopies of the Counterfoil of the C forms, which was rejected. This case is clearly distinguishable on facts. There is no conflict between the observations made in this case by Delhi High Court in [1981] 48 STC 333 or in the judgment of the honourable Supreme Court in *(1997) 10 SCC 486 and the observa- tions made in Commissioner of Sales Tax, M.P., Indore v. Gajanan Bidi Leaves Co. [1986] 62 STC 203 and also the ratio in Manganese Ore (India) Limited v. Commissioner of Sales Tax, Madhya Pradesh [1991] 83 STC 116 where Duplicate portion of the C form was accepted as sufficient compliance under rule 12(1) of the Central Rules. 5.. Mr. Saharya has also made the following submissions at the time of hearing: (a) That the High Court has failed to note that the fact of bona fides of the loss of original portion of the statutory form is not disputed and as such ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is meant to be used in extraneous circumstances by the dealer to claim the concessional rate as a proof of quantity of the transactions; (g) the duplicate C form is nothing but a replica of the original C form meant for extreme circumstances. The Act itself has provided what procedure to be followed in the event of loss of C form. This having been fulfilled the High Court and the assessing authority have grossly erred in not considering the same and rejected the concessional rate of tax. It is submitted that all possible efforts have been made in order to confirm the transactions from the purchaser like obtaining attested copies on the triplicate and also a letter from them confirming the transactions. This is full compliance of rule 12(2) as well as rule 12(3). The appellant has also lodged a police complaint for having lost the forms. Having done all these acts, which are humanly possible, the appellant should not have been denied the option of getting the concessional rate of tax; (h) placing reliance on section 62 primary evidence of the Evidence Act, it is submitted that where a number of documents are made by a uniform process, namely, printing, photocopy, cyclostyl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iate State, which- ever is higher; and (c) in the case of goods, the sale or, as the case may be, the purchase of which is, under the sales tax law of the appropriate State, exempt from tax generally shall be nil, and for the purpose of making any such calculation under clause (a) or clause (b), any such dealer shall be deemed to be a dealer liable to pay tax under the sales tax law of the appropriate State, notwithstanding that he, in fact, may not be so liable under that law. Explanation .-For the purposes of this sub-section, a sale or purchase of any goods shall not be deemed to be exempt from tax generally under the sales tax law of the appropriate State if under that law the sale or purchase of such goods is exempt only in specified circumstances or under specified conditions or the tax is levied on the sale or purchase of such goods at specified stages or otherwise than with reference to the turnover of the goods. (3) The goods referred to in clause (b) of sub-section (1)-....... (b) are goods of the class or classes specified in the certificate of registration of the registered dealer purchasing the goods as being intended for resale by him or subject to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment may, by notification in the Official Gazette, make Rules providing for,- (a) the manner in which application for registration may be made under this Act, the particulars to be contained therein, the procedure for the grant of such registration, the circumstances in which registration may be refused and the form in which the certificate of registration may be given; (aa) the form and the manner for furnishing declaration under sub-section (8) of section 8; (b) the period of turnover, the manner in which the turnover in relation to the sale of any goods under this Act shall be determined, and the deductions which may be made under clause (c) of sub-sec- tion (1) of section 8A in the process of such determination; (c) ............... (d) ............... (2) ............... (3) The State Government may make Rules, not inconsistent with the provisions of this Act and the Rules made under sub- section (1), to carry out the purposes of this Act. 10.. Rule 12 of the Central Sales Tax (Registration and Turn- over) Rules, 1957 reads thus: 12. (1) The declaration and the certificate referred to in sub- section (4) of section 8 shall be in forms C and D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who wishes to purchase goods from another such dealer on payment of tax at the rate applicable under the Act to sales of goods by one registered dealer to another, for the purpose specified in the purchasing dealer's certificate of registration, shall obtain on payment of fifty paise per form or ₹ 12.50 per book of 25 forms or ₹ 45 per book of 100 forms from the assessing authority in whose jurisdiction the principal place of business is situated, a blank declaration form prescribed under sub-rule (1) of rule 12 of the Central Sales Tax (Registration and Turnover) Rules, 1957 for furnishing it to the selling dealer. Before furnishing the declaration to the selling dealer the purchasing dealer, or any responsible person authorised by him in this behalf, shall fill in all required particulars in the form, and shall also affix his usual signature in the space provided in the form for this purpose. Thereafter, the Page No: 339 counterfoil of the form shall be retained by the purchasing dealer and the other two portions marked 'Original' and 'Duplicate' shall be made over by him to the selling dealer. ............... (b)(i) The procedure for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereafter been misplaced and, there- fore, the appellant could file only the duplicate. It is submitted that under rule 12(2) of the Central Sales Tax (Registration and Turnover) Rules, 1957 in case of loss of original C forms, if he complies with the above rule, the appellant will be eligible for the concessional rate of sales tax. It is stated that when the appellant had complied with the said rule, there is no reason for denial of the concessional rate. The impugned order passed by the respondent was, therefore, erroneous and it is set aside restoring the order of the assessing authority. In our opinion, the said contention is not tenable and has no force. We have already extracted rule 6(b)(ii) of the Central Sales Tax (Karnataka) Rules, 1957 and rule 12(2) and 12(3) of the Central Sales Tax (Registration and Turnover) Rules, 1957. In our view, the rule has to be strictly construed. Admittedly, the appellant has not com- plied with the said provisions and, therefore, he is not entitled to the concessional rate of tax under section 8 of the Central Sales Tax Act. Section 8(4) specifically provides that the provisions of sub-section (1) shall not apply to any sale in the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d (3) of the Central Sales Tax (Registration and Turnover) Rules, 1957 provides that the registered dealer is required to file the declaration and the certificate referred to in section 8(4) in forms C and D respectively. Form C is a declaration divided into three parts. All the three parts are identical, the first part of the form being the counter-foil and the second part being the duplicate and the third part being the original. The counter-foil is to be retained by the purchasing dealer. The original is to be filed before the assessing officer by the selling dealer to claim the concessional rate. The duplicate is to be retained by the selling dealer. If the C form or the original part of it is lost whilst in the custody of the purchasing dealer or in transit, the purchasing dealer shall have to furnish an indemnity bond for the same as fixed by the concerned authority. If the original part of C form is lost by the selling dealer whilst it is in his custody or in transit, the selling dealer shall furnish an indemnity bond as fixed by the concerned authority and follow the procedure prescribed under rule 12(3). 14.. We are of the view that rule 6(b)(ii) of the Central Sales ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessional rate of tax at 4 per cent should be allowed even on the basis of the duplicate portion of C form cannot be accepted and the judgments relied on by the learned counsel for the appellant are distinguishable on facts and law and particularly in view of the specific provisions contained in rule 6(b)(ii) of the Central Sales Tax (Karnataka) Rules, 1957 which requires that the portion of C form marked original should be furnished by the selling dealer to avail the concessional rate of tax on his inter-State sales. It is not open to the assessing officers under the Act to go into the rationale of rule 6(b)(ii) of the Central Sales Tax (Karnataka) Rules, 1957. Their duty is to simply implement it without going into the question of any hardship that may be caused even to an honest dealer. 17.. We shall now consider the rulings and pronouncements made by this Court on the very subject. 18.. In Kedarnath Jute Manufacturing Co. v. Commercial Tax Officer, Calcutta [1965] 16 STC 607 (SC).[1965] 3 SCR 626, the question that arose in this case was whether under section 5(2)(a)(ii) of the Bengal Finance (Sales Tax) Act, 1941, the furnishing of declaration forms issued by the purchas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orm of declaration and the particulars to be contained in the declaration. A direction that there shall be a separate declaration in respect of each individual transaction may appropriately be made in exercise of the power conferred under section 13(1)(d). The State Government is undoubtedly empowered to make rules under sub-sections (3) and (4) of section 13; but the Rules made by the State Government must not be inconsistent with the provisions of the Act and the Rules made under sub-section (1) of section 13 to carry out the purposes of the Act. 20.. In a similar matter Commissioner of Sales Tax, Delhi v. Delhi Automobiles (P.) Ltd. [1981] 48 STC 333, the Delhi High Court held that the production of a declaration form is a condition precedent for the availability of the concession. The Bench also has observed that these detailed provisions are intended as a measure of safeguard against possible mis-utilisation of the forms and also to ensure that relief is not obtained by more than one selling dealer in respect of the same declaration form by using the various parts of it differently. 21.. This Court has further held that the essence of these rules and regulations is that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts thereof were filed before the assessing authority in Madhya Pradesh. 23.. The above judgment does not help the appellant in the present case. The facts in the above case and the case on hand are different. This apart, there is no similar rule in this case to the one found in the case on hand, namely, rule 6(b)(ii) of the Central Sales Tax (Karnataka) Rules, 1957 that makes of the difference for it is the rule 6(b)(ii) imposes the condition in the instant case. 24.. Against the decision in Commissioner of Sales Tax, Delhi v. Delhi Automobiles (P.) Ltd. [1981] 48 STC 333 of the High Court of Delhi, the Delhi Automobiles (P) Ltd., preferred an appeal in this Court-Delhi Automobiles (P) Ltd. v. Commissioner of Sales Tax, Delhi See [1997] 104 STC 75. (1997) 10 SCC 486 which was dismissed by this Court. The learned judges of this Court has observed in para 7 as under: In our view, in the first place, the assessee had not done all that it could; it could, and should, have preferred an appeal against the order of the learned single Judge and persisted in his application for obtaining from the Official Liquidator duplicates of the 'C' form declarations, as required by r ..... 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