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TMI Blog2012 (6) TMI 769X X X X Extracts X X X X X X X X Extracts X X X X ..... h, along with annexure B, shows the eligibility to exemption, the period, quantum and the goods in respect of which exemption is granted. The bone of contention is only with respect to the period of exemption granted as per annexure A order. The petitioner claims that annexure A exemption order under SRO. No. 1729/1993 prescribes exemption for a period of seven years with respect to the petitioner's liability under the KGST Act, subject however, to the quantum of tax exemption which is also specified in annexure A. The present revision is with respect to the CST assessment of the petitioner completed for the year 1998-99. The petitioner claimed on the strength of annexure A order that in continuation of SRO. No. 1729/1993 issued under section 10 of the KGST Act, the Government has issued SRO. No. 1730/1993 under the CST Act granting reduced rate of two per cent for inter-State transaction, again for a period of seven years. Admittedly no separate exemption order is required to be passed under the Central Sales Tax Act or the notification issued thereunder. 3. The assessing officer rejected the claim of the petitioner for grant of exemption under the Central Sales Tax Act for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to the eligibility of the petitioner under SRO. No. 1729/1993 and would definitely invite a scrutiny of annexure A, exemption order. Annexure A cites the subject as- "New medium and large scale industrial units-Set up on or after April 1, 1989-Sales tax exemption orders issued-Regarding." Hence, the petitioner's claim was not considered as a unit set up on or after April 1, 1993, since the petitioner's unit is obviously one set up on or after April 1, 1989, i.e., prior to April 1, 1993, but commenced commercial production on September 1, 1993. Though SRO. No. 1729/1993 is read as item 6 in annexure A order, we read as item No-1 SRO. No. 654/1989, which is an earlier notification in 1989 issued to grant exemption in respect of tax payable under the KGST Act on the turnover of the sale of goods produced and sold by new industrial units for a period of five years from the date of commencement of sale of such goods. The said notification, though not produced, was perused by us and "new industrial unit" as per the said notification was explained as meaning "large and medium undertakings set up on or after April 1, 1989 and registered with the Depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1989. Annexure A, as noticed above, would specifically show that SRO. No. 1729/1993 was not as such applicable to the petitioner. It was by virtue of the note extracted above contained in SRO No. 1729/1993 that the petitioner was entitled to seek the exemption under SRO. No. 654/ 1989. However, the exemption could be only for a period of five years as provided under SRO. No. 654/1989. 8. This interpretation is in consonance with the concession granted under the Central Sales Tax Act by SRO. No. 1730/1993 and SRO. No. 1731/ 1993. SRO. No. 1730/1993, as rightly contended by the petitioner, defines "new industrial unit" as those defined under SRO. No. 1729/1993. That is to say, those units set up on or after April 1, 1993. It is to the units which are set up on or after April 1, 1993 and entitled to exemption under the KGST Act as per SRO. No. 1729/1993 that SRO. No. 1730/1993 was issued granting concessional rates under the Central Sales Tax Act for a period of seven years. Obviously as found above, the petitioner is not a unit set up on or after April 1, 1993 and is thus not covered by the terms contained in SRO. No. 1729/1993 or by SRO. No. 1730/1993. This brings us to the issue o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot sit in judgment over the proceeding of an authority granting exemption has been laid down in Deputy Commissioner of Sales Tax, Ernakulam v. Surya Refineries (P) Ltd. [1991] KLJ (Tax Cases) 513. Necessarily when a competent authority passes an order by virtue of the jurisdiction conferred on it by the statute, the same is valid and applicable, unless set aside, varied or modified in accordance with law. The only caveat would be when the order passed is without jurisdiction. The concept of jurisdiction has two aspects-(i) going to the root; in so much as the competence of the authority itself is questioned and (ii) when an authority competent to consider the issue exceeds the jurisdiction in the course of the enquiry. 10. On the question of judicial review with reference to jurisdiction or lack of it a significant break-through in English law was achieved with Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 AC 147 (HL). The House of Lords for the first time rejected the idea that jurisdiction of a Tribunal or authority could only be questioned in the first instance as to the competence to embark upon an enquiry. It was held that the jurisdictional aspect could be q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s right or wrong subject only to the power of the court in certain circumstances to correct an error of law. . ." In the said decision the ouster of jurisdiction of courts provided in a statute was considered by the appellate court which reiterated the established principle that a provision ousting the ordinary jurisdiction of the court though must be construed strictly; it should be understood that nevertheless it reserves the ordinary jurisdiction of the court to exercise judicial review where the order passed under the statute was a "nullity". A fine distinction was drawn in the errors of law that was committed within the jurisdiction and those errors of law which were beyond or in excess of the jurisdiction. While the former would necessarily have to be corrected by a superior authority or court, Anisminic Ltd. [1969] 2 AC 147, clearly laid down that any error of law committed, which touches upon the very jurisdiction of the authority/Tribunal could be considered a nullity. 11. We keep in mind the fine line distinguishing the jurisdictional and nonjurisdictional error. We are also conscious of the contours of our jurisdiction in the above revision. We remind ourselves that we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der by the District Level Committee was incompetent, inter alia, for the reason that the same was passed after the period of exemption was over, thus disentitling the assessee from passing on the liability to its consumers. On the strength of precedents, the Division Bench first rejected the contention of the assessee about being disabled to pass on the tax liability and held that the disability of the assessee to pass on the tax burden to its customers cannot be of any consequence. (vide J.K. Jute Mills Co. Ltd. v. State of Uttar Pradesh [1961] 12 STC 429 (SC), American Remedies Pvt. Ltd. v. Government of Andhra Pradesh [1999] 113 STC 400 (SC) and State of Rajasthan v. J.K. Udaipur Udyog Ltd. [2004] 137 STC 438 (SC)). 14. The next contention dealt with by the Division Bench was with respect to the assessing officer going behind the orders of exemption granted by the competent authorities. The Division Bench examined the concepts of "jurisdiction" and "nullity" and found that the instant case was one in which there was a want of jurisdiction and not one of irregular assumption of jurisdiction. Under the notification, in the said case, the District Level committee was authorised to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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