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TMI Blog1963 (10) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... ts the tax is levied at the point of purchase, groundnut oil is taxed at the point of sale. The result of this feature naturally is that when a person purchases groundnut and converts the same into oil and sells the oil extracted he has to pay tax at both the points. Rules have been framed in order to alleviate what might be considered a hardship by reason of this double levy. Rule 5(k) of the Turnover & Assessment Rules provides: "5. (k) in the case of a registered manufacturer of groundnut oil and cake, the amount which he is entitled to deduct from his gross turnover under rule 18 subject to the conditions specified in that rule". and Rule 18 referred to reads: "18. (1) Any dealer who manufactures groundnut oil and cake from groundnut and/or kernel purchased by him may, on application to the assessing authority having jurisdiction over the area in which he carries on his business, be registered as a manufacturer of ground nut oil and cake. (2) Every such registered manufacturer of groundnut oil will be entitled to a deduction under clause (k) of sub-rule (1) of rule 5 equal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sales Tax Act, 1939. The answer to the question arising in this matter turns upon whether the chief characteristics of groundnut oil remain the same in spite of the chemical processes it undergoes, It also involves the interpretation of the notifications issued by the Government of India under the Essential Supplies (Temporary Powers) Act and certain provisions of the Vegetable Oils Products Control Order. In these circumstances we think it a fit case for appeal to the Supreme Court. Leave is therefore granted." Thereafter the appeal was entertained in this Court and numbered as Civil Appeal 498 of 1958, was finally disposed of on October 18, 1960 and is now reported as M/s Thungabhadra Industries Ltd. v. The Commercial lax Officer, Kumool ([1961] 2 S.C.R. 14). Meanwhile in regard to the assessment of the three succeeding years---1950-51, 1951-52 and 1952-53, the same question as to whether "hydrogenated groundnut oil" was "groundnut oil" entitled to the deduction of the purchase turnover under r. 18(2) of the Turnover and Assessment Rules was raised and was decided against the appellant by the Sates Tax Officer. This order was taken up in appeal to the Deputy Commissioner of Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere filed on November 23, 1959, and apparently notice was issued to the respondent-State Government and the petition for review came on for hearing on January 6, 1961. 180 On that date the learned Judges dismissed the said applications and assigned the following as the reasons for their order: "The only ground argued in support of these review petitions is that leave to appeal to the Supreme Court was granted in similar circumstances in regard to previous year and there was no reason why leave should have been refused in these cases. We do not think that would furnish a sufficient ground for reviewing the order dismissing the petitions for leave to file an appeal t 0 the Supreme Court. That apart, the Supreme Court was moved under Article 136 of the Constitution for special leave and that was dismissed may be on the ground that it was not flied in time. In the circumstances, we think that our order dated 4.9.1959 dismissing S.C.C.M.Ps No. 4823, 4825 and 4827 of 1959 cannot be reviewed." The appellants thereupon made applications for special leave from this Court to challenge the correctness of this last order and the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course, was there any contention that the ground that he proposed to submit came into existence after the filing of the statement of case. It was in these circumstances that we declined to permit the respondent to develop an argument to persuade us to hold that the leave granted by this Court should be revoked, though we might add that the matter mentioned by learned Counsel for the respondent in this respect would not, even if urged at the hearing of the special leave petition, have materially assisted him in resisting the grant of special leave. The point he desired to urge was that in the petition for special leave the appellant had averred that the decision of this Court reversing the judgment of the High Court in T.R.C. 120 of 1953 had been brought to the notice of the High Court, but that this statement must be erroneous or untrue for two reasons: (1) This is not referred to in the order now under appeal, and (2) the decision of this Court was not reported in any of the law reports--official or unofficial -- till long after January 1961 when the petition for review was heard. It is manifest that neither of the two circumstances would by itself prove the untruth of the avermen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for review being filed "from a decree or order from which an appeal is allowed but from which no appeal has been preferred." In the present case, it would be seen, on the date when the application for review was filed the appellant had not filed an appeal to this Court and therefore the terms of O. XLVII r. 1(1) did not stand in the way of the petition for review being entertained. Learned Counsel for the respondent did not contest this position. Nor could we read the judgment of the High Court as rejecting the petition for review on that ground. The crucial date for determining whether or not the 'terms of O. XLVII. r.1 (1) are satisfied is the date when the application for review is filed. If on that date no appeal has been filed it is competent for the Court hearing the petition for review to dispose of the application on the merits notwithstanding the pendency of the appeal, subject only to this, that if before the application for review is finally decided the appeal itself has been disposed of, the jurisdiction of the Court hearing the review petition would come to an end. The next question is as regards the effect of the refusal of this court to condone the delay in filing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh learned Counsel for the appellant stressed this ground in the order of September, 1959 as itself disclosing an error apparent on the face of the record or was at least, ,indicative that the learned Judges did not apply their minds to the consideration of the question arising in the application for a certificate of fitness, we shall proceed on the basis that this was merely a clerical error in their order and that the learned Judges had really in mind the terms of Art. 133(1) which had been invoked by the appellants in their application for the certificate. On the basis that the words in the order of September, 1959 referring to a substantial question of law as to the interpretation of the Constitution were really meant to say that no substantial question of law was involved in the appeal sought to be filed in this Court how does the matter stand ? There was practically no question of fact that fell to be decided in T.R.Cs. 75 to 77 of 1956 and the sole question related to the claim to deduct the value of the groundnut on which purchase tax had been paid and which had been converted into hydrogenated oil which had been sold and which had been included in the appellant's turnover. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in T.R.Cs. 75 to 77 of 1956. The entire controversy turned on the proper interpretation of r. 18(1) of the turnover & Assessment Rules and the other pieces of legislation which are referred to by the High Court in its order of February 1956 nor could it be doubted or disputed that these were substantial questions of law. In the circumstances therefore, the submission of the appellant that the order of September 1959 was vitiated by "error apparent'' of the kind envisaged by O. XLVII r. 1, Civil Procedure Code when it stated that "no substantial question of law arose" appears to us to be clearly well-founded. Indeed, learned Counsel for the respondent did not seek to argue that the earlier order of September 1959 was not vitiated by such error. He, however, submitted that this Court should have regard not to whether the earlier order was so vitiated or not but to the grounds which were urged by the appellant at the hearing of the application for review and that if at that stage the point in the form in which we have just now expressed was not urged, this Court would not interfere with the order rejecting the application for review. He pointed out that at the stage of the arg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o claim the previous order of 1956 as a binding precedent, they failed to appreciate the substance of the appellant's argument. If, however, they meant that the matters set out by them in their order granting a certificate in relation to their decision in T.R.C. 120 of 1953 were not also involved in their judgment in T.R.Cs. 75 to 77 they were in error, for it is the case of no one that the questions of law involved were not identical. If, besides, they meant to say that these were not substantial questions of law within Art. 133(1), they were again guilty of error. The reasoning, therefore, of the learned Judges in the order now under appeal, is no ground for rejecting the applications to review their orders of September, 1959. We therefore consider that the learned Judges were in error in rejecting the application for review and we hold that the petitions for review should have been allowed. We only desire to add that in so holding we have not in any manner taken into account or been influenced by the view expressed by this Court in Tungabhadra Industries Ltd. v. The Commercial Tax Officer, Kurnool([1961] 2 S.C.R. 14 ) regarding the construction of Rule 18(2) of the Turnover & As ..... X X X X Extracts X X X X X X X X Extracts X X X X
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