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2016 (9) TMI 823 - PUNJAB & HARYANA HIGH COURT

2016 (9) TMI 823 - PUNJAB & HARYANA HIGH COURT - TMI - Rejection of refund claim - Rule 4(1) of the Punjab General Sales Tax (Deferment and Exemption) Rules, 1991 - benefit of exemption/deferment for payment of tax available from the date of issuance of exemption/entitlement certificate - Rule 3(2) of the Rules - special and alloys steels - eligibility certificate - delay in issuance of eligibility certificate - extension of eligibility period - alternative remedy of appeal - Held that: - the or .....

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cise & Taxation Commissioner on 13.10.2003, any subsequent representation made by the petitioner, that too more than three years thereafter raising any plea was not maintainable and as a consequence all subsequent orders passed thereon have no value at all. - There is nothing on record to suggest that the petitioner ever raised any issue regarding the period of its entitlement of exemption from payment of tax immediately after the eligibility and exemption certificates were issued to it. The .....

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sed is also to be noticed and rejected for the reason that firstly M/s Godrej & Boyce Mfg. Co. Ltd. was granted deferment from payment of tax and not exemption and further there was an amendment made in the Rules to that effect. The vires of that Rule has not been challenged. - Petition dismissed - decided in favor of petitioner. - CWP No. 9083 of 2014 (O&M) - Dated:- 10-8-2016 - Rajesh Bindal And Harinder Singh Sidhu, JJ. Mr. Sandeep Goyal, Advocate for the petitioner. Mr. Jagmohan Bansal, .....

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nd Exemption) Rules, 1991 (for short, 'the Rules') has also been challenged. Further prayer in the alternative is to read down the provisions of Rule 3(2) of the Rules to mean that the benefit of exemption/deferment for payment of tax shall be available from the date of issuance of exemption/entitlement certificate. 2. Learned counsel for the petitioner submitted that the petitioner is engaged in the manufacture of special and alloys steel for use in automobile and engineering industry. .....

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od of 6-1/2 years from the date of production that the eligibility certificate was issued on 3.3.2000. Thereafter, the exemption certificate was issued on 18.4.2000. The period of validity was from 15.9.1993 till 14.9.2000. Meaning thereby the period for which the petitioner could claim benefit of exemption was merely five months. As per Rule 3(2) of the Rules, the benefit is admissible to an eligible industrial unit only after the eligibility certificate is issued in its favour. Rule 4 of the R .....

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y in the aforesaid rule, as an industrial unit cannot be granted eligibility certificate on the date of production. The process is bound to take some time. Once the benefit is to be granted only after the issuance of eligibility certificate, the period for which the benefit is granted also should have been from that date and not from the date of production. 3. He further submitted that in case of M/s Godrej & Boyce Mfg. Co. Ltd., the period which was spent in issuing the eligibility certific .....

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.2000. Thereafter, it filed application seeking refund of the amount of tax deposited during the period the petitioner was entitled to exemption from payment of tax, vide letter dated 24.7.2002. The same was rejected by the competent authority vide memo dated 25.11.2002. The communication was challenged by the petitioner by filing CWP No. 2952 of 2003-Vardhman Special Steels v. State of Punjab and others, seeking a direction to the respondents therein to refund the amount of tax deposited during .....

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hat the order passed by the Excise and Taxation Commissioner was non-speaking. The matter was heard by the Excise and Taxation Commissioner, who vide order dated 13.10.2003, rejected the claim of the petitioner. It was for the first time that before the Excise and Taxation Commissioner, the petitioner raised the issue for extension of time for availing the benefit. The order attained finality as the petitioner did not avail of its appropriate remedy against that order at that stage. Thereafter, .....

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communication dated 16.8.2011. It was challenged by the petitioner before the Tribunal in statutory appeal. The Tribunal vide order dated 5.3.2012, while setting aside the order passed by the Excise and Taxation Commissioner, remitted the matter back for passing a speaking order. Thereafter, the Excise and Taxation Commissioner passed order on 8.8.2012 rejecting the plea raised by the petitioner. The order was upheld by the Tribunal in appeal filed by the petitioner, as the petitioner was not a .....

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der. The petitioner kept quiet, though against the order passed by the Excise and Taxation Commissioner, statutory appeal was maintainable. It was further submitted that once the order passed by the Excise & Taxation Commissioner had attained finality, the petitioner having not challenged the same, any subsequent judgment will not give a cause of action to the petitioner to file a fresh representation by taking a different stand. Thereafter, even a request made by the Chairman of the petitio .....

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not feel aggrieved of the same at the time when the eligibility certificate was issued to it and it availed the benefit initially. It did not raise the issue regarding delay in issuance of eligibility certificate at the appropriate time in case there was any lapse on the part of the department in issuing the eligibility certificate. The petitioner should have availed of its appropriate remedy at that time. Initially, the prayer made about two years after the expiry of the eligibility period was .....

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Godrej & Boyce Mfg. Co. Ltd. has been impleaded as respondent in the petition, hence, the petitioner cannot claim any relief on that basis. 7. After hearing learned counsel for the parties, we do not find any reason to interfere in the present petition. As is claimed by the petitioner, the unit set up by it for manufacture of special and alloys steels for use in automobile and engineering sectors came into production on 15.9.1993. It applied for issuance of eligibility certificate. The same .....

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to, which expired on 14.9.2000. As is evident from the communication dated 25.11.2002, the petitioner made a representation dated 24.7.2002 for refund of the tax already paid for the period the unit of the petitioner was exempted from payment of tax in terms of the exemption certificate issued in its favour. For that period, as claimed by the petitioner, it had collected and paid the tax to the State. The request made by the petitioner was rejected by the Excise and Taxation Commissioner vide co .....

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and without any application of mind and being also against the provisions of Rule 4A of the 1991 Rules and also against the incentive granted to the petitioner vide eligibility certificate, dated 3.3.2000 as well as being violative of Articles 14, 19(1) (g) and 21 of the Constitution of India. c) Issue a writ in the nature of prohibition/mandamus directing the respondents to refund/adjust an amount of ₹ 225.98 lacs which has been paid as sales tax by the petitioner to the respondents w.e.f .....

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order passed by the Excise & Taxation Commissioner was nonspeaking. The communication dated 25.11.2002 was set aside. The matter was remitted back to the Excise & Taxation Commissioner to hear and decide the same afresh by passing a speaking order. The writ petition was disposed of on 15.7.2003. Thereafter, the Excise & Taxation Commissioner heard the petitioner and rejected the prayer made by the petitioner for refund of the tax charged and deposited by it with the State on 13.10.2 .....

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provisions of Section 20 of the Act, appeal from every original order passed under the Act or the Rules by the Excise & Taxation Commissioner or any officer exercising the powers of the Commissioner was maintainable before the Tribunal. The petitioner kept quiet and did not avail of its statutory remedy of appeal against the order passed by the Excise & Taxation Commissioner on 13.10.2003 as a result, the same attained finality. 9. Thereafter, as is evident from the material on record, t .....

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ssed by the Excise & Taxation Commissioner on 13.10.2003. The petitioner did not avail of any remedy even at that stage. The petitioner thought of filing fresh representation on 15.1.2007 referring to certain judgment and the case of M/s Godrej & Boyce Mfg. Co. Ltd. claiming parity. Such a representation was not maintainable once the petitioner had earlier failed to avail of its statutory remedy against the order passed by the Excise & Taxation Commissioner on 13.10.2003 in pursuance .....

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e Tribunal in appeal on 2.9.2013. 10. In the light of the fact that there was statutory remedy available to the petitioner against the order passed by the Excise & Taxation Commissioner on 13.10.2003, any subsequent representation made by the petitioner, that too more than three years thereafter raising any plea was not maintainable and as a consequence all subsequent orders passed thereon have no value at all. The rights between the parties stood settled on 13.10.2003. It is a case where th .....

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