TMI Blog2013 (5) TMI 998X X X X Extracts X X X X X X X X Extracts X X X X ..... background, in which these reliefs are claimed, briefly stated is as follows:- The Government of Himachal Pradesh, Department of Industries issued notification dated 30.12.2004 announcing Industrial Policy of the State Government titled as Industrial Policy, Rules Regarding Grant of Incentives, Concessions and Facilities to Industrial Units in H.P. 2004 and H.P. Industrial Renewal and Revival Scheme of 2004. Admittedly, as per the said policy Clause 10.3 at Page 84, Central Sales Tax was to be charged at concessional rate of 1% on the goods manufactured by new and existing Industrial Units (as defined under the said Rules) unless provided otherwise elsewhere in the said Rules but upto 31.03.2009. It is indisputable that the said policy by efflux of time lapsed on 31.03.2009. No doubt, the Cabinet of Government of Himachal Pradesh considered the proposal mooted by its Industrial Department to extend the incentive of concessional rate of CST @ 1% for all the industrial enterprises beyond 31.03.2009 till 31.03.2013 or till the CST is phased out by the Central Government. That proposal was mooted keeping in mind that after expiry of the Industrial Policy of 2004, with effect from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he taxable turnover of such goods with immediate effect for the period ending 31-3-2013. 3. The Governor of Himachal Pradesh is further pleased to direct that the concessional rate of central sales tax specified in para 2 of this notification shall be levied only if the existing industrial unit or new industrial unit, as the case may be,- ( i) has been registered as a dealer under the Himachal Pradesh Value Added Tax Act, 2005, for manufacture of goods for sale; ( ii) complies with the provisions of (a) Himachal Pradesh Value Added Tax Act, 2005 (b) the Central Sales Tax Act, 1956 and (c) the rules including the Scheme, if any made, the notifications and orders issued under these Acts; ( iii) not only manufactures but also sells goods by themselves and it shall not be open for finished goods purchased or acquired by concerned industrial units for re-sale; ( iv) has obtained a certificate in Form I prescribed under this Department notification No.EXN-F(1)- 2/2004(iii)dated 30th March, 2005 from the General manager, District Industries Centre of the Department of Industries of the Government of Himachal Pradesh where the industrial unit is register ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication. For, the Cabinet of the Government of Himachal Pradesh having resolved to extend the concession beyond 31.03.2009 till 31.03.2013 vide decision dated 20.05.2009, the inevitable consequence was to introduce the said concession with retrospective effect from 01.04.2009, if not of extending the existing Industrial Policy of 2004 for further period upto 31.03.2013 as such. 5. Having considered the rival submissions, we have no manner of doubt that the notification issued by the Excise and Taxation Department dated 18.06.2009 would prevail. In that, the same has been issued in exercise of statutory powers under Section 8(5) (b) of the Act, 1956 in the name of and by the Governor of the State. Reliance cannot be placed on the decision of the Cabinet or the proposal of the Industrial Department to extend the concession rate of CST at 1% for all the Industrial Enterprises from 31.03.2009 till 31.03.2013. 6. The plain language of notification dated 18.06.2009, in our view, leaves no manner of doubt that it is intended to give prospective effect, as the expression used is with immediate effect . Even in absence of that expression, ordinarily, the notification will have to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in our opinion, that would not create any right in favour of the petitioner, much less a pre-existing right, which has been affected by the impugned notification dated 18.06.2009. 8. Reliance was then placed on the decision of the Division Bench of our High Court in the case of Gujarat Ambuja Cement Ltd. and another Versus Assessing Authority-cum-Assistant Excise and Taxation Commissioner and Others 2000 (118) STC 315. Even the exposition in this decision, in our opinion, will have to be understood in the context of the fact situation of that case. The Court found as of fact that the notification issued by the Government on 31.07.1992 affected the pre-existing and vested right of the assessee. 9. Reliance was also placed on another decision of the Apex Court in the case of I.T.C. Bhadrachalam Paperboards and another Versus Mandal Revenue Officer, Andhra Pradesh and others 1998 (110) STC 590 , to contend that the notification dated 18.06.2009 will have to be construed as conditional legislation and exercise of such power by the State Government will have to be in conformity with the decision of the Cabinet and moreso will have to be understood to mean that benefit whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision of the Apex Court in the case of M/s W.P.I.L Ltd. Ghaziabad Versus Commissioner of Central Excise, Meerut, U.P. AIR 2005 SC 1321 . In this case, the Court was called upon to examine the explanatory notification in the context of the controversy raised in that case. The Court noted that the submission of the appellant that the Government was satisfied about the policy which was in vogue not to impose excise duty on parts of power driven pumps used in the factory premises for manufacture of power driven pumps and to clarify the position was well founded. The Court further opined that the Authorities were in error in upholding the demand and in directing the appellant to pay excise duty, notwithstanding the clarificatory notification having restrospectivity. In the present case, it is not a case of clarificatory notification but subsequent or new notification dated 18.06.2009 introducing concession @ 1% CST with effect from the issuance of the notification, to be paid on inter-State sales. If that is the basis on which the Authorities have proceeded to consider the matter and concluded that the petitioner is liable to pay Central Sales Tax @ 2% on the inter-State sales, for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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