TMI Blog2007 (12) TMI 424X X X X Extracts X X X X X X X X Extracts X X X X ..... rtain such an application. Therefore, it can safely be said that this is a case of District Level Committee having want of jurisdiction and not one of irregular assumption of jurisdiction. Therefore, the order passed by the District Level Committee in regard to plywood is one without jurisdiction and therefore, a nullity in the eye of law and therefore, the assessing authority was justified in passing the assessment orders for the assessment years 1997-98 and 1998-99 in levying tax under the Act on the sale of plywoods both under the KGST and CST Acts. No merit in these revision petition. - - - - - Dated:- 18-12-2007 - DATTU H.L. C.J. AND JOSEPH K.M. , JJ. ORDER:- The order of the court was made by H.L. DATTU C.J. The assessee is common in all these petitions, and therefore, these petitions are clubbed, heard and disposed of by this common judgment. The assessee has called in question the correctness or otherwise of the common order passed by the Sales Tax Appellate Tribunal in T.A. Nos. 404 of 2003 and 405 of 2003 and Cross Objection Nos. 34 of 2003 and 35 of 003 dated May 12, 2004. The assessee is a dealer registered both under the provisions of the Ke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s. Nina Boards, Development Plot, Andoor, have applied for Kerala general sales tax /Central sales tax/purchase tax exemption for new unit (strike out whichever is not applicable). 2.. As per the minutes of the meeting cited above it was determined that the unit is eligible for exemption from Kerala general sales tax/ Central sales tax/purchase tax/additional sales tax/surcharge and turnover tax (strike out whichever is not applicable) as per the provisions of Government Orders cited above for the following items manufactured and sold by them for the period from July 5, 1995 to July 4, 2002. 3. Items manufactured and annual capacity S. No. Name of items Quantity Value Block board and flush door, plywood 4. Therefore, as per the provisions of the above Government 84842.8 sq. m. 30,000 Order, M/s. Nina Boards, Development Plot, Andoor, eligible for tax exemption as described in para 2 above up to Rs. 20,14,263 (rupees twenty lakhs fourteen thousand two hundred and sixty-three only) against their application dated January 15, 1996. 5. The unit shall produce the certificate before the sales tax authorities for claiming the exemptions. 6. This exemption is valid only f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s irregular since the product plywood is in the negative list with effect from April 1, 1994 as per S.R.O. No. 404 of 1994. This case was re-examined and it was found that the sales tax exemption allowed for the product plywood is irregular since the unit was provisionally registered on November 28, 1994, i.e., after the product plywood was included in the negative list as per S.R.O. No. 404 of 1994 which is effect from April 1, 1994. This case was placed before the District Level Committee on sales tax exemption held on June 26, 2003. The District Level Committee discussed this case and observed that the unit should not have been granted sales tax exemption for the product plywood since plywood is in the negative list with effect from April 1, 1994 as per S.R.O. No. 404 of 1994. The Committee further observed that the unit was provisionally registered after the product plywood was included in the negative lists and resolved to cancel sales tax exemption granted for the product plywood as per order first cited and instructed to amend the order accordingly. Hence this order. Order No. C2.2058/2003 DDis dated August 2, 2003. In the circumstances stated above, the order No C2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this power, this court can only adjudicate on an issue which the Tribunal has failed to decide though it was urged and argued or erroneously decided any question of law. Re. Issue No. 1: The apex court in the case of Union of India v. Commercial Tax Officer [1956] 7 STC 113 has stated that taxation under the fiscal legislation is a rule and exemptions and concessions are only exceptions to the rule. As these exceptions create inequality before law by conferring certain benefits and privileges on a particular person or class of persons, thereby increasing the burden on others, and therefore, the provisions in the law granting exemptions or concessions should be given strict interpretation. The principles that require to be kept in view while deciding the issue which has come for our consideration are: I. That, the authority who gives the promise must have the statutory or other power to give the promise which is sought to be enforced. The law on the point is settled by the decision of the apex court in case of Bakul Cashew Co. v. Sales Tax Officer [1986] 62 STC 122, a case where the State of Kerala withdrew an exemption granted retrospectively, when it is found that it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under sub-section (1) of section 10 of the Act. It is also not disputed by the learned counsel for the assessee that the amendment made by S.R.O. No. 404 of 1994 with effect from April 1, 1994, was in exercise of the power granted by the Legislature to the State Government under sub-section (3) of section 10 of the Act. The validity or otherwise of the said notification is not questioned by the assessee before any forum. Needless to say that it cannot be done in a revision petition filed against the orders passed by the Tribunal before this court. That being the factual position, the notification S.R.O. No. 1729 of 1993 and S.R.O. No. 404 of 1994 which is given effect from April 1, 1994 requires to be considered together. If it is done in that manner, the industrial units manufacturing certain items like biscuits, cement paints, packing cases, plywood would not be eligible for concession under the notification. The petitioner had approached the District Level Committee by filing an application dated January 15, 1996, for grant of exemption from payment of sales tax both under the KGST and the CST Acts. The Committee by its order dated April 18, 1996 has only determined that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the application filed by the petitioner's industrial unit. In the instant case, even according to the assessee the application for exemption from payment of tax came to be filed only on January 15, 1996 and the said application came to be considered by the District Level Committee and the order came to be passed only on April 18, 1996, granting exemption from payment of sales tax on block boards, flush boards and plywoods. The assessee filed its annual returns for the assessment years 1997-98 and 1998-99 and in that had claimed exemption on the sales turnover of plywoods. The assessing authority after noticing that the assessee is not entitled for exemption on the sales turnover of plywoods had not only rejected the returns filed, but also had requested the District Level Committee to re-examine the sales tax exemption granted to the unit, since the product plywood was in the negative list with effect from April 1, 1994. It is no doubt true that there is some delay on the part of the assessing authority in noticing the error made by the District Level Committee while granting exemption on the sale of plywoods by the petitioner's industrial unit and in our view, the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not in dispute. It also is not disputed that the amendment made by the 1996 Act was in exercise of its legislative powers by the State Legislature. The validity of the amendment had not been questioned either in the writ petition or even before us. That being the fact situation, the grievance made by learned counsel for the petitioner to the effect that the demand of differential tax based on the amendment of entry 37 could not have been made, is wholly misconceived. It is settled position that an assessee is liable to pay sales tax and the question whether he has collected it from consumer or not is of no consequence. His liability is by virtue of being an assessee under the Act. (underlining by us(1)) The aforesaid view is reiterated by the apex court in the case of State of Rajasthan v. J.K. Udaipur Udyog Ltd. [2004] 137 STC 438. In that the court has stated (page 457): The mere circumstances that the respondent-companies having availed of the exemption scheme were prohibited from collecting the tax from its customers or that they had not collected the sales tax (1)Here italicised. from their customers, (which assertion is strongly disputed by the appellants), is of no c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hra Pradesh General Sales Tax Act to go behind the eligibility certificate. The eligibility certificate issued by the Department of Industries and Commerce could not be cancelled by the Sales tax authorities. Reliance was also placed on the decision of Rajasthan High Court in the case of S.B.P. Chem Pvt. Ltd. v. State of Rajasthan [1993] 90 STC 382. In our opinion, the decision on which reliance is placed by learned counsel for the petitioner, would not assist the petitioner's learned counsel. The facts and circumstances and the issues that came up for consideration in those decisions are in no way nearer to the facts and circumstances in the present case. Per contra, Sri Mohammed Rafiq, learned Government Pleader for the Revenue would submit, that the District Level Committee, while considering the application filed by the petitioner for grant of exemption from payment of sales tax on plywoods, could not have travelled beyond the notification issued by the State Government in S.R.O. No. 1729 of 1993 and S.R.O. No. 404 of 1994 and could not have allowed the petitionersmall-scale industrial unit to take the benefit of exemption from payment of sales tax both on its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est. In the instant case, it must be noted that the appellants claimed before the Industries Department as well as before the competent authority under the notification that their product is mineral water. In fact, the product which is produced by the appellants is not mineral water at all and that is the reason why they have changed the name of the product when standards have been prescribed for mineral water in the Prevention of Food Adulteration Act and the Rules. From this it is clear that though the product is named as 'mineral water' it is not mineral water and by the use of the name mineral water the appellants were trying to mislead the authorities for the purpose of getting exemption. In other words the appellants had given the name 'mineral water' without the product being mineral water. According to us, this mis-representation on the part of the appellants vitiates the entire proceedings and consequently the appellants cannot get the benefit of the eligibility certificate erroneously issued. The issue that falls for our consideration is whether the assessing authority was justified in completing the assessments for the assessment years in question, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here is nothing to prevent another order being made in respect of the same land, provided that it is done lawfully. Thus a public authority or Tribunal is often given locus poenitentiae and is able to correct an error by starting afresh something which it might otherwise be unable to do. The expression jurisdiction came up for consideration before the apex court in the case of Official Trustee v. Sachindra Nath Chatterjee AIR 1969 SC 823, Union of India v. Tarachand Gupta Bros [1971] 1 SCC 486 and Hari Prasad Mulshanker Trivedi v. V.B. Raju [1974] 3 SCC 415. In re. Sachindra Nath Chatterjee's case AIR 1969 SC 823 the apex court held: Before a court can be held to have jurisdiction to decide a particular matter it must not only have jurisdiction to try the suit brought but must also have the authority to pass the order sought for. It is not sufficient that it has some jurisdiction in relation to the subject-matter of the suit. Its jurisdiction must include the power to hear and decide the questions at issue, the authority to hear and decide the particular controversy that has arisen between the parties. In re. Tarachand Gupta and Bros.' case [1971] 1 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it can safely be said that this is a case of District Level Committee having want of jurisdiction and not one of irregular assumption of jurisdiction. Therefore, the order passed by the District Level Committee in regard to plywood is one without jurisdiction and therefore, a nullity in the eye of law and therefore, the assessing authority was justified in passing the assessment orders for the assessment years 1997-98 and 1998-99 in levying tax under the Act on the sale of plywoods both under the KGST and CST Acts. The Sales Tax Appellate Tribunal can decide both question of law and questions of fact. Alternatively, it can be said that the Tribunal is the last fact-finding authority. Proceedings before the Tribunal is the continuation of original proceedings. In the present case, when the Tribunal decided the appeal, the cancellation order passed by the District Level Committee at the instance of the assessing authority dated August 2, 2003 was available on record. The Tribunal having noticed the same, was justified in confirming the assessment orders passed by the assessing authority, even assuming there was some procedural irregularity when the assessments were completed by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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