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2016 (7) TMI 586 - GUJARAT HIGH COURT

2016 (7) TMI 586 - GUJARAT HIGH COURT - TMI - Suo motu revision proceedings - Period of limitation - Held that:- Tribunal has erred in sustaining the order of Assistant Commissioner of Sales Tax so far as it relates to applicability of limitation in the revisional proceedings. The Tribunal is not justified in holding that amendment in section 67(1)(a) of the Act is not applicable to such pending proceedings wherein notice for revision in form no. 49 has been issued prior to 07.04.1992 and procee .....

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L JUDGMENT (PER : HONOURABLE MR.JUSTICE KS JHAVERI) 1. The applicant - State of Gujarat under Section 69 of the Gujarat Sales Tax Act, 1969 made an application before the Tribunal to refer to this Court a question of law arising out of Tribunal s judgement and order dated 17.08.1995 in Revision Application No. 2/94. Accordingly, a statement of case was drawn on 16.07.2004 referring the following question of law by way of Reference Application No. 11 of 1997: (1) Whether on the facts and in the c .....

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gs are still pending on that date. (2) If answer to above question is in negative then whether the order of the Gujarat Sales Tax Tribunal in Revision Application No. 2 of 1994 is legal and proper. 2. The applicant is carrying on business of manufacturing agricultural implements for sale and is a dealer registered under the Gujarat Sales Tax Act 1969 (hereinafter referred to as the Act ). The applicant was assessed by Sales Tax Officer vide assessing order dated 31.08.1988 and on account of some .....

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the Tribunal. The applicant therefore made an application for referring the question of law to this Court. 3. Mr. Hardik Modh, learned advocate for the applicant has drawn the attention of this Court to Section 67 of The Gujarat Sales Tax Act, 1969 and submitted that the amendment made by the legislature in section 67(1)(a) of the Act applied to pending proceedings and the order passed by the Assistant Commissioner of Sales Tax in suo motu revision was passed after more than 12 months from the d .....

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nto consideration, the revision application ought to have been decided on or before 06.04.1993 which is not done in the present case and therefore the order was barred by limitation. 3.2 In support of his submissions, Mr. Modh has relied upon the following decisions: (1) Osram Surya (P) Ltd vs. Commissioner of Central Excise, Indore reported in [2002] (142) ELT 5 (SC); (2) Commissioner of Income Tax vs. Royal Motor Car Co. reported in [1977] 107 ITR 753; (3) M. Ravji vs. State of Gujarat reporte .....

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he amending provision laying down limitation of passing revisional order within 12 months from the date of service of notice would not apply in the instant case. He submitted that since the proceedings were initiated much prior to the amendment, the contention raised by the applicant cannot be sustained. 5. Heard learned advocates for both the sides. Section 67(1)(a) of the Act reads as under: 67. Revision : (1) Subject to the provisions, of section 66 and to any rules which may be made in this .....

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ng provision, the revisional authority is bound to pass revisional order within 12 months from the date of service of notice of revision. In the present case, notice in form 49 was served upon the applicant on 08.07.1991 and the impugned order was passed on 16.08.1993 which is after a period of two years. 6. The Apex Court in the case of Osram Surya (P) Ltd (supra) has held as under: 7. Having heard the arguments of the parties and after considering the Rule in question, we think that by introdu .....

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his Court in Eicher Motors Ltd. V. Union of India (1999 [106] ELT 3 SC) wherein this Court had held that a right accrued to an assessee on the date when it paid the tax on the raw-materials or the inputs would continue until the facility available thereto gets worked out or until those goods existed. In that background, this Court held that by Section 37 of the Act, the authorities concerned cannot make a Rule which could take away the said right on goods manufactured prior to the date specified .....

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oduction of the second proviso to Rule 57G, the credit in the account of a manufacturer was not taken away but only the manner and the time within which the said credit was to be taken or utilized alone was stipulated. It is to be noted at this juncture that the substantive right has not been taken away by the introduction of the proviso to the Rule in question but a procedural restriction was introduced which, in our opinion, is permissible in law. Therefore, in our opinion, the law laid down b .....

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er (supra), a manufacturer's vested right is taken away, therefore, the Rule in question should be interpreted in such a manner that it did not apply to cases where credit in question had accrued prior to the date of introduction of this proviso. In our opinion, this argument is not available to the appellants because none has questioned the legality or the validity of the Rule in question, therefore, any argument which in effect questions the validity of the Rule, cannot be permitted to be .....

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to the coming into force of the Rule. This we find it difficult because in our opinion the language of the proviso concerned is unambiguous. It specifically states that a manufacturer cannot take credit after six months from the date of issue of any of the documents specified in the first proviso to the said sub-rule. A plain reading of this sub-rule clearly shows that it applies to those cases where a manufacturer is seeking to take the credit after the introduction of the Rule and to cases whe .....

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our opinion, the tribunal was justified in holding that the Rule in question only restricts a right of a manufacturer to take the credit beyond the stipulated period of six months under the Rule. Therefore, this appeal will have to fail. 6.1 Similarly, in the case of Royal Motor Car Co. (Supra), this Court has held as under: It is well-settled law that as regards matters of procedure, the legislature can make changes and those changes would apply so far as limitation is concerned pending procee .....

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is order, the Tribunal has observed in paragraph 1 : "If we consider that the penalty has been imposed under the Act as it stood before amendment in 1970 then it is clearly out of time. Even if the amendment of 1970 has to be taken into consideration then the Inspecting Assistant Commissioner is not competent to impose the penalty. Hence, in any of the alternative views, penalty cannot be sustained." At least so far as the question of limitation is concerned, it is obvious that the old .....

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