TMI Blog1987 (11) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... before a Division Bench of this Court on 7th August, 1987 and during the arguments an order dated 7th October, 1986 passed by another Division Bench of this Court, in which one of us (Faizanuddin, J.) was a member, in Miscellaneous Petition No. 1861 of 1983 (G.S. Dall and Flour Mills v. State of M.P.), was referred to in support of these petitions, wherein it was held that even the traditional industries like dall mills are also covered by 1981 notification referred to above and that such traditional industries are also entitled to the grant of eligibility certificate to claim exemption from payment of sales tax. The Division Bench hearing these two petitions was of the opinion that the said order rendered in G.S. Dall and Flour Mills (M.P. No. 1861 of 1983 dated 7th October, 1986-Madhya Pradesh High Court) required reconsideration as the aspect does not appear to have been brought to the notice of the Division Bench that the notification dated 23rd October, 1981 was not a notification which laid down the terms and conditions in the matter of grant of eligibility certificate and that the said notification, in column No. (3), only provided that the exemption shall be available to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Division Bench of this Court in the case of G.S. Dall and Flour Mills (M.P. No. 1861 of 1983), the respondent-State by a notification dated 3rd July, 1987, published in the M.P. Gazette dated 4th July, 1987 (annexure-G) amended the earlier notification of 1981 by inserting a paragraph below the Schedule of 1981 notification to the effect that the exemption under the said notification of 1981 shall not be available to certain traditional industrial units including flour mills and dall mills. 5.. The petitioners' case is that on being induced by 1981 notification granting concession to the new industrial units by way of exemption from payment of sales tax, the petitioners established their dall mills by making heavy capital investments of lacs of rupees and commenced production in the year 1983, and thereafter on fulfilling all the necessary conditions, the petitioners moved the District Industries Centre, Guna, for issuing requisite eligibility certificate in order to enable them to claim exemption from payment of sales tax in terms of the said notification, but the District Industries Centre by its communications (annexures-E to E/2) declined to issue the required eligi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted any eligibility certificate to any traditional industries and as such the question of grant of eligibility certificate to the petitioners who have set up dall mills, which are traditional industries, does not arise. The respondents have further stated that 1981 notification does not contemplate exemption automatically simply because an industry is registered with the Industries Department; but it should also fulfil the conditions enumerated in column No. (3) of the said notification. It is stated that according to 1981 notification no exemption can be granted without obtaining an eligibility certificate from the Industries Department. No procedure is prescribed for grant of eligibility certificate either in the said notification or in the Act itself nor there are statutory rules and, therefore, the Government had laid down the procedure for the same according to which the petitioners are not entitled to eligibility certificates. 7.. The respondents have further pleaded that by the impugned notification dated 3rd July, 1987 (annexure-G) the State Government has not withdrawn any existing exemption or concession but it has clarified the position and removed the ambiguity that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e with the plain meaning of the language employed therein without implying anything which is not expressed or by importing limitations which are not to be found in the notification itself but on the assumed deficiency supplied from outside. In support of these contentions reliance has been placed on the decisions in the cases of Innamuri Gopalam, v. State of Andhra Pradesh [1963] 14 STC 742 (SC), Sushil Kumar Sharad Kumar v. Commissioner of Sales Tax [1985] 60 STC 184 (MP); [1986] 19 VKN 34 (MP) and Commissioner of Income-tax v. Maharashtra Sugar Mills Ltd. AIR 1971 SC 2434 (at page 2437 Col. II). But we are not convinced with any of the aforesaid submissions made by the learned counsel for the petitioners for the reasons stated hereinafter. 10.. The crux of the matter is the notification dated 23ra October, 1981 (annexure-B) of which the relevant part and to the extent it is essential for disposal of these petitions is reproduced hereunder for the sake of convenience: "Notification Revenue Department, Bhopal, the 23rd October, 1981. F. No. A-3-41-81(35)-ST-V. In exercise of the powers conferred by section 12 of the Madhya Pradesh General Sales Tax Act, 1958 (No. 2 of 1959) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch notification shall cease to be in force. A notification rescinding an earlier notification shall have prospective effect. (3) ..............................." 11.. A perusal of sub-section (1) of section 12 reproduced above will go to show that the State Government while issuing any notification exempting any class of dealers or any goods or class of goods from payment of tax or from any provision of the Act, it also has the power to impose certain restrictions and conditions in respect of such exemptions. Now a reading of column No. (3) of the notification reproduced above will go to show that a dealer or class of dealer, who has been granted exemption and specified in column No. (1) of the notification is required to continue to furnish the prescribed returns under the Act and to produce before the assessing authority at the time of his/its assessment a certificate issued by the Director of Industries, M.P., or any officer authorised by him for the Purpose, certifying that such dealer is eligible to claim the exemption and that he has not opted for the scheme of deferring the payment of tax under the rules framed for this purpose (emphasis* supplied). It is abundantly and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etc., in the year 1969 for which the Government issued guidelines known as "Rules of concession for sales tax" (annexure-R I, pages 69 to 75 in M.P. No. 2710 of 1987). The said instructions were approved by the Government by order dated 30th August, 1973 (annexure-R I). The said scheme according to clause 2 was brought into force after 15th September, 1969, and had to continue till the end of the Fourth Five Year Plan or such further period as may be extended by the State Government. Clause 3 of these instructions relates to the eligibility for the concession which specifically speaks that the same would not be applicable to traditional industries like oil mills, flour mills and dall 'mills, etc. Thereafter in the year 1977, the Government again issued further instructions dated 8th June, 1977 (annexure-R II, pages 76 to 83 in M.P. No. 2710 of 1987) in place of earlier instructions (annexure-R I) for the development of those new industrial units which were established in pursuance of the said earlier instructions. The instructions of 1977 were known as "Rules for grant of sales tax subsidy/loan to industries in M.P." and were made applicable with effect from 1st April, 1977. Cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom 1973 onwards till 1983 (annexures-R I, II and III) clearly indicate not only the consistent Government policy in the matter of grant of sales tax concessions to the new industrial units but also the consistent practice that has been followed throughout whereby these concessions were not at any time made available to the traditional industries like flour mills and dall mills, etc. Not a single instance is available to show that any of these concessions were ever made available to any traditional industries. It may be pointed out that all these facts and the Government policy as also all the aforesaid Government instructions on the subject were not placed before the Division Bench which heard and decided Miscellaneous Petition No. 1861 of 1983 (G.S. Dall and Flour Mills v. State of M.P.). However, after the decision of M.P. No. 1861 of 1983 the State Government while issuing Notification No. 351 dated 21st October, 1986 under section 12 of the Act, a photostat copy of which has been filed on record of M.P. No. 2710 of 1987 (see at page 94 of the Paper Book) exempting the industrial units specified therein from payment of tax under sections 6 and 7-AA of the Act again specifically ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the commodities as also their use from time to time. If, therefore, such an authority issued a notification including certain commodities under the head of 'oil-seeds', as defined under the Central Act, it cannot be said that the Tribunal and the High Court were not right in preferring such an opinion of the Government as good evidence for its conclusion". 15.. It is true, as contended by the learned counsel for the petitioners, relying on certain decisions, referred to in paragraph 9 of this order, that, it is settled law that in the absence of any ambiguity, the taxing statute or any notification in that behalf must be construed according to the plain language employed therein without importing limitations which are not to be found there. But as pointed out earlier that column No. (3) of 1981 notification (annexure-B) does not contain any guidelines or a procedure in the matter of grant of eligibility certificate or refusal thereof by the Industries Department and as the grant or refusal of such certificate cannot be an empty formality and, therefore, in order to avoid the possibility of arbitrariness and injustice to anyone the State Government was justified in issuing executi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 162 and the State Government has executive power, in relation to all matters with respect to which the Legislature of the State has power to make laws. Again in the case of Sant Ram v. State of Rajasthan AIR 1967 SC 1910 it was ruled that it cannot be said that till statutory rules governing promotion to selection grade posts are framed the Government cannot issue administrative instructions regarding principles to be followed. The same view was reiterated by the Supreme Court in Sarkari Sasta Anaj Vikreta Sangh v. State of M.P. AIR 1981 SC 2030, paragraph 9, wherein it was observed that the State Government has undoubted competence to make a scheme for setting up fair price shops in exercise of its executive power under article 162 of the Constitution. In the case before us admittedly there are no guidelines or any procedure provided in column No. (3) of the notification dated 23rd October, 1981 (annexure-B) under which the exemption is claimed by the petitioners and, therefore, the State Government was fully competent to issue executive instructions in exercise of its powers conferred on it by article 162 of the Constitution. 19.. Lastly, learned counsel for the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded to the said instructions and the petitioners applied in form I with declaration in form II (see annexures-D, D1 and D2 in M.P. No. 2710 of 1987). Further these applications for exemption were made by the petitioners only after the order dated 7th October, 1986 was passed in G.S. Dall and Flour Mills v. State of M.P. (M.P. No. 1861 of 1983-Madhya Pradesh High Court) which shows that the petitioners were aware of the fact that they were not entitled to exemption and it was only after the aforesaid decisions that they considered to apply for exemption. This fact is further fortified from the conduct of the petitioners themselves as they continued to submit returns right from 1983 onwards and continued to pay the tax as assessed against them without taking any steps to claim exemption. In this behalf paragraphs 8 and 9 of the petition are self-explanatory. Thus having regard to all these facts, the question of application of principle of promissory estoppel in the present case does not arise and the petitions deserve to be dismissed. 21.. In the result, both the petitions fail and are hereby dismissed. There shall, however, be no order as to costs. The outstanding amount of secu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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