TMI Blog2016 (8) TMI 1077X X X X Extracts X X X X X X X X Extracts X X X X ..... g premises and assumed jurisdiction not vested in it. It was bound by the order of determination passed by the Deputy Commissioner unless, by virtue of exemption notification, entire basis of such determination was rendered invalid. The legislature providing for exemption of such product from payment of tax does not necessarily and by itself imply that the product was otherwise exigible to tax. Question of relegating the petitioner to the alternative remedy therefore would not arise, when we find that the Assessing Officer has gone against an order of determination which was binding on him and when we find that his reasons for discarding such order of determination are wholly invalid. In other words, in our opinion, there was no material change in the relevant taxing entries insofar as the product in question is concerned. The Assessing Officer therefore, could not have ignored the order of determination. His order therefore was wholly without jurisdiction. - Special Civil Application No. 7171 of 2016 - - - Dated:- 28-7-2016 - Akil Kureshi And A. J. Shastri, JJ. For the Petitioner : Uchit N Sheth, Advocate For the Respondent : Advance Copy Served To GP/PP Notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 18.06.2001 passed by the Deputy Commissioner under section 62 of the Sales Tax Act. 4. With effect from 31.03.2012, Entry78 was added to the notification of exemption issued by the Government in the exercise of powers under section 5(2) of the VAT Act. This notification granted exemption to aquatic feed from whole of the tax payable from 31.03.2012. 5. On the basis of this development, the Assessing Officer carried a belief that prior to 31.03.2012 aquatic feed would fall under the residuary clause since after 31.03.2012, it is made specifically exempt from payment of tax by notification of exemption issued by the Government. For the assessment year 201112, therefore, after hearing the petitioner, he passed the impugned order dated 30.03.2016 and held that the product in question i.e. aquatic feed would invite VAT under the residuary clause. Since the petitioner had not paid the tax, he levied such tax with interest and penalty. He thus, raised the total demand of ₹ 16,65,34,540/from the petitioner on this count. It is this order, the petitioner has challenged in the present petition. 6. Learned counsel Shri Uchit Sheth for the petitioner raised following conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Sales Tax Act pertained to determination of disputed questions and read as under: Section 62Determination Of Disputed Questions. (1) If any question arises, otherwise than in proceedings before a court, or proceedings under section 41 or 44, whether for the purposes of this Act (a) any person, society, club or association or any firm or any branch or department of any firm is a dealer, or (b) any particular thing done to any goods amounts to or results in the manufacture of goods within the meaning of that term, or (c) any transaction is a sale or specified sale or purchase, or (d) any particular dealer is required to be registered, or (e) any tax is payable in respect of any particular sale, specified sale or purchase or if tax is payable the rate thereof, the Commissioner shall make an order determining such question. (2) The Commissioner may direct that the determination shall not affect the liability of any person under this Act, as respects any sale, specified sale or purchase effected prior to the determination. (3) If any such question arises from any order already passed under this Act or any earlier law, no such question sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) and pass such order thereon as he thinks just and proper within two years from the date of service of notice for revision of such order: Provided that the order passed by the Commissioner under this subsection shall not affect the liability of any person under this Act, with respect to any sale or purchase effected prior to such order.] (3) any such question arises from any order already passed under this Act or under the earlier law, no such question shall be entertained for determination under this section; but such question may be raised in appeal against, or by way of revision of such order. 14. From the above provisions, it can be seen that under section 62 of the Sales Tax Act, the authority had the power to decide a question regarding the taxability of a particular product or the rate of the tax. Under subsection (2) of section 62, the authority had the power to provide that such determination shall not effect the liability of any person in respect to the period prior to such determination. Subsection (3) of section 62 provided that if any question arises from any order already passed, under said Act or the earlier law, no such question shall be entertaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods having attained finality, the Assessing Officer was bound by such decision and cannot in absence of any change in circumstance, take a different view. 18. In case of Ponds India Limited (Merged with H.L.Ltd.) v. Commissioner of Trade Tax, Lucknow reported in [2008] 15 VST 256 (SC), the Supreme Court observed that if an entry has been interpreted consistently in a particular manner for several assessment years, ordinarily it would not be permissible for the Revenue to depart therefrom, unless there is a material change. 19. Thus, even after introduction of the VAT Act, the order passed by the Deputy Commissioner on 18.01.2001 continued to hold the field, insofar as the question of proper classification of the petitioner's commodity viz. prawn feed was concerned. 20. If that be so, the question that arises is whether the Assistant Commissioner could have given a different interpretation and reopened the classification. This question has two elements. First is of the binding nature of the order of determination and second is whether had there been any material change owing to which such question was thrown open for fresh consideration. 21. First aspect can be ans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. At the cost of repetition we may state that in the instant case the Dy. Commissioner has already taken final decision u/s.62 in 1981 in favour of the respondent. In spite of it, ignoring clear provision of Section 62(3) of the Act the Assistant Commissioner took the contrary view then the earlier view taken by the Deputy Commissioner of Salestax only on the ground that there was subsequent decision of the Tribunal and, therefore, he was bound by the decision of the Tribunal. 10. Bare reading of Section 62(3) of the Act makes it clear that if any question arises from any order already passed under the Act or any earlier law, no question shall be entertained for determination under this section, but such question may be raised in appeal against, or by way of revision of such order. Thus, there is clear mandate that once the decision becomes final, the same cannot be reagitated. It can only be questioned either in Appeal or by way of Revision. In the instant case if the department was aggrieved then it could have filed Appeal u/s.65 (1) ( c ) before the learned Tribunal as the order was passed by the Dy. Commissioner against the department on 9.11.1981. Admittedly no such A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttle feed, and thus whether before or after 31.03.2012, all cattle feed continued to fall within the list of goods, the sale or purchase of which are exempt from tax. The exemption entry pertaining to aquatic feed did not change this position. This change therefore, had no material effect on the order of determination passed by the Deputy Commissioner. We may recall, under such order, the Deputy Commissioner had held that the prawn feed would fall within the meaning of cattle feed for the purpose of entry 11 to the Schedule-I to the Sales Tax Act. The Assessing Officer, thus, proceeded entirely on the wrong premises and assumed jurisdiction not vested in it. It was bound by the order of determination passed by the Deputy Commissioner unless, by virtue of exemption notification, entire basis of such determination was rendered invalid. The legislature providing for exemption of such product from payment of tax does not necessarily and by itself imply that the product was otherwise exigible to tax. Question of relegating the petitioner to the alternative remedy therefore would not arise, when we find that the Assessing Officer has gone against an order of determination which was bindi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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